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Volume III Number 4 



MAY, 1931 

Published by 





The High-Lights of the Great Sanhedrin .... Gabe Jacobson 261 

The Sprague Case H. H. Creekmore 282 

Section 147 of the Constitution of 1890 D. M. Russell 292 

Liabilities of Municipal Corporations in Mississippi 

Kenneth P. Vinsel 298 

Pre-Convention Committee Reports 319 

Table of Contents and Index for Volume III 351 

Complete Table of Contents of This Issue 
on Page III 

Entered as second class matter at the Post Office at University, Mississippi, with additional 
entry at the Post Office at Jackson, Tennessee. 


Editorial and Business Office • . UNIVERSITY, MISS. 



Leading Articles page 

The High-Lights of the Great 

Sanhedrin Gabe Jacobson 261 

The Sprague Case H. H. Creekmore 282 

Section 147 of the Constitution of 
1890 D. M. Russell 292 

Liabilities of Municipal Corporations in 

Mississippi Kenneth P. Vinsel 298 

Pre-Convention Committee Reports 319 

Note and Comment 334 

Liability of Insurer for Amount in Excess of Stipulated Liability in Policy 
by Reason of the Failure of Insurer to Settle the Claim 334 

Recent Important Decisions 339 

Appeal and Error — Latitude of Argument of Counsel 339 

Pardon — Full Pardon Absolves Attorney at Law from All the Consequences 
of an Order of Disbarment 341 

Constitutional Law — Due Process Requires Notice and Hearing Before Court 
Can Deprive Parent of Child's Custody 342 

Statute of Frauds — Writings Connected with Internal Reference — Guaranty 
Distinguished from Indemnity 343 

Railroads — Mississippi Prima Facie Statute 344 

Book Reviews 346 

Books Received 349 

Table of Contents and Index for Volume III 351 

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LYRASIS Members and Sloan Foundation 

To the Members of the Mississippi 
State Bar Association: 

The officers of your Association sincerely hope 
that all of the members will attend the annual meet- 
ing at Meridian in May. There will be matters of 
much importance placed before the Association, and 
if the Association is to function properly it is essen- 
tial that a large membership be present at this meet- 

Secretary-Treasurer earnestly requests those 
members who have not yet paid their 1931 dues to 
send in their checks as soon as possible. Please 
make checks for dues payable to the Mississippi 
State Bar Association. 

You will find in this issue of the Journal an ap- 
plication form for membership in the State Bar 
Association. If there are any lawyers in your com- 
munity who are not members of the Association and 
whom you can recommend, we hope that you will 
use this form and increase the membership of the 
Association. Have the applicant send in this form 
with a check for $5.00 and he will be entered on the 
membership roll. 

Yours very truly, 


Mississippi State Bar Ass'n. 











MAY, 1931 



By Gabe Jacobson,* 

In the administration of law, as in all other endeavors 
of human progress, the continuous changes demanded by the 
times are ever present. We quickly cast aside the old and 
take on the new. There was, perhaps, never a time in the 
history of our country more than now, when the general 
feeling of unrest has brought about such disrespect for our 
existing institutions, and while we consider changes, espe- 
cially in the law, it is advisable that we should occasionally 
stop and think of and consider the lessons of the past ; lest 
we forget some of the valuable lessons of antiquity. All that 
is old is not necessarily good; but because it is old is not 
sufficient reason for discarding it. It has occurred to me 
that when our attention is turned to ancient legal systems, 
that it would be of interest to the law fraternity to bring 
before it some of the procedure of Hebrew courts, which 
have not existed since A. D. 70. 

Sanhedrin is a Hebrew- Aramaic term originally desig- 
nating only the assemblage at Jerusalem that constituted 
the highest political, administrative, legislative, religious, 
and judicial magistracy in the country sitting as a Jewish 

The word " Sanhedrin ' ' is derived from the Greek and 
denotes a legislative assembly or an ecclesiastical council 
deliberating in a sitting posture. Several other names are 
also found in history to designate the Great Sanhedrin of 
the Jews. ' ' The Council of Ancients ' ' is a familiar designa- 
tion of early Jewish writers. It was also called " Grand 
Council", and sometimes called the "Tribunal of the Mac- 
cabeans ' '. 

Whether it had its origin through the advice given to 

* Member of the Meridian, Mississippi, Bar; and Former President of 
the Mississippi State Bar Association. 



Moses by his father-in-law, Jethro, or came into being a 
year later, is a matter concerning which biblical expositors 
are divided. That a permanent national senate was created 
at a later period is maintained very generally by Jewish 
writers. Others claim that this senate continued with very 
short interruptions from the time of Moses until the Baby- 
lonish captivity, and was revised and reorganized on more 
definite principles after the return of the Jews to Jerusa- 

When we consider the different theories as to the origin 
of the Great Sanhedrin, we may conservatively say that the 
concensus of opinions leads us to believe that it was estab- 
lished in the wilderness by Moses, who acted under divine 
guidance as was recorded in Numbers XI :16-24, as follows : 
' ' Gather unto me seventy of the elders of Israel, whom thou 
knowest to be elders of the people, and officers of them; 
and bring them unto the tabernacle of the congregation, that 
they may stand with thee, and I will take of the spirit that 
is upon thee and will put it upon them ; and they shall bear 
the burden of the people with thee, that thou bear it not 
alone. ' ' 

Brushing aside mere theory and speculation as to when 
it had its origin, one historical fact is clear and uncontra- 
dicted, and that is, the Sanhedrin council clothed with the 
general judicial and religious attributes of the i ' Great San- 
hedrin ,, was a regular organized court from 200 B. C. until 
the destruction of the Temple in Jerusalem in 70 A. D., 
when it perished with the destruction of Jerusalem. And 
it goes without saying that the Hebrew laws are the product 
of a long development. They begun as primitive customs, 
which were gradually ameliorated with the progress of 

In this article, only one branch of the Sanhedrin courts 
will be considered, and that will be the Great Sanhedrin 
Court sitting as a criminal court, hearing capital offenses. 

Hereinafter reference is often made to the Talmud, and 
it seems to me appropriate to now make a brief explanation 
of the nature and character of the writing contained in 
what is known among Hebrew scholars as the Talmud. 

In order for one to clearly understand the penal code of 
the Hebrews he cannot, alone, depend on the Pentateuch; 
but must turn to the Talmud, w T hich was to the ancient 
Hebrews a compendum of their literature, the storehouse of 
their traditions, the exponent of their faith, the record of 
their acquirements, the handbook of their ceremonials, and 
the summary of their legal code, civil and penal. What we 


call the Mosaic Code as embodied in the Pentateuch fur- 
nished to the children of Israel the necessary source of the 
law and justice; but for ancient traditions we must look to 
the Rabbinic interpretations, which were contained in the 
Talmud and supplied the needed rules of practical applica- 
tion. The contents of the Talmud were not proclaimed to 
the world by any executive, legislative, or judicial body; 
they were not the result of any resolutions or mandate of 
any congregation, college or Sanhedrin, they were not, in 
any sense formal or statutory. They were simply a great 
mass of traditionary matter and commentaries transmitted 
orally through many centuries before being finally reduced 
to writing. 

The Pentateuch, or what is known as the Mosaic Code, 
was the written law and the foundation of ancient Hebrew 
Jurisprudence. The Talmud was the commentaries of the 
law or oral law connected with, derived from and built upon 
the written law of the Pentateuch. To state it differently; 
it may be said, that the Mosaic Code as embodied in the 
Pentateuch was the lex scripta, and the Talmudic commen- 
taries and provisions was the lex non scripta of the Com- 
monwealth of Israel. 

It would be somewhat inaccurate to speak of the Talmud 
as a book, it is rather a small library or collection of books, 
and it is said that an English translation of the Talmud 
with its commentaries would make a library of 400 volumes, 
each numbering 360 octavo pages. 

The Great Sanhedrin was the supreme trial court in 
Jerusalem, composed of seventy-one members including a 
President and Vice-President. The proceedings of the Great 
Sanhedrin were directed by these two presiding officers. 
One of which styled "Prince" was the president of the 
court, and the other known as the ' ' Father of the Tribunal ' ' 
was the vice-president. The presidency of the council went 
to him who surpassed his colleagues in wisdom. This is 
asserted in the Constitution of the Sanhedrin. The re- 
mainder of the members composing the Great Sanhedrin 
was equally divided in three chambers : 

Twenty-three in the chamber of priests ; 

Twenty-three in the chamber of scribes ; 

Twenty-three in the chamber of elders. 

The first of these orders represented the religious or 
sacerdotal ; the second, the literary and legal ; the third, the 
patriarchal, the democratic or popular element of the 
Hebrew population. Thus, the principal estates of the 


commonwealth were present by representation in this 
supreme court and the parliament of the nation. 

Its jurisdiction was a very wide one, covering an ex- 
tensive field of religion as well as purely legal cases. In 
our modern system, the states through their representatives 
are the prosecutors or accusers. In the Jewish law the duty 
of accusing lay upon every citizen who witnessed the crime. 
In civil law, where in spite of the religious background, the 
offense was a private nature, the party injured started the 
trial. In criminal cases, religion acting through every 
member of the faith, assumed the roll. 

The entire machinery of the law having been placed in 
the hands of the learned, or the Priest who for a long time 
were identical with that class, and religion assuming the 
place of the state, there were laws enacted embodying the 
tender mercies accorded to the accused. The King had little 
judicial power; he was rather in the capacity of executive 
than judge. The laws were binding for him as for any 
other subject. The king was not considered as in Ancient 
Eome or in Mediaeval Europe the source of law. On the 
contrary, the later Talmudic authorities state that if the 
king's commandments conflicted with a certain legal or re- 
ligious law, it was null and void. The king or sovereign did 
not have any voice or influence in the appointment of the 
judges, nor could he interfere in any way with the organiza- 
tion of the various tribunals, nor in the election of the 
judges. The people only had the right to nominate the 
members of the Sanhedrim The science of legal administra- 
tion was based on the representative system, and what we 
should now days term "universal sufferage." 

While the judges were elected to the lower tribunal or 
Lesser Sanhedrin by the people, the Great Sanhedrin had 
in charge the appointment of judges from the Lesser or 
Lower Sanhedrin to the Great Sanhedrin in case of vacan- 
cies. The Great Sanhedrin had jurisdiction over all capital 
offenses. Its jurisdiction was universal and stretched over 
the whole land. Neither king nor prince was beyond its 
jurisdiction. It had original jurisdiction in all matters. 
A non-compliance with its judgment or refusal to carry out 
its mandates was punishable by death. An elder or judge 
who taught in contravention to the decisions of that august 
council was by the Mosaic Code to be condemned to die. 

With regard to the civil matters, it was the supreme 
court of appeals, and in regard to the criminal matters, a 
tribunal conducted for the trial of all offenses that were 
committed by men in any public station, or that affected 


the peace or majesty of the people. Appeals were allowed 
from a minor Sanhedrim to the Great Sanhedrin, but there 
was no appeal from a mandate or judgment or decree of the 
Great Sanhedrin. Its authority was supreme in all matters, 
civil, political, social, religious, and criminal. 

Every Jew, if he but possessed high intellectual and 
moral qualifications, was qualified to sit in the civil court. 
The qualifications for the judgeship in the criminal court 
was much higher. The candidates for that office had to 
be of full blood Jewish parents, members of noble families, 
such as were able to form alliances with priests. In addition 
they had to be free from bodily defects, and of an impres- 
sive physique. They had to be great scholars. The re- 
quired age for a candidate was forty years. On the other 
hand very old age was a disqualification. One who had no 
children or who was extreme in his temperament, either too 
harsh or too kind-hearted was also disqualified. 

In the number of its members, in the requisite of learn- 
ing, courage, character and impartiality for such member- 
ship in the nature of its jurisprudence and detail of its 
procedure, it surpassed any like assemblage which has ever 
administered the laws in any nation. No more dignified 
or learned body has ever interpreted or administered justice 
to man. 

Under the system of the government every Jew might 
aspire to the dignity of a judge; but to prevent any but 
competent and qualified persons from being appointed to 
the various tribunals ample precautions were taken. It was 
not, however, necessary in the care of the provencial or 
Lesser Sanhedrin to guard against sheer inefficiency, for 
no Israelite could have been absolutely ignorant of the law. 
It must be remembered that education was well advanced 
among the Hebrews. A system of compulsory instruction 
was in force. There was a school board for each district. 
Every child more than six years of age was obliged to at- 
tend the communal school unless receiving private lessons 
at home from qualified tutors. Such importance does the 
Talmud attach to the training of the young that it enters 
into the minutest details upon the subject. Prom his earliest 
years the Jewish boy was a diligent student of the Bible ; 
it was his primer and reading book. Its laws and traditions 
were also as familiar to him as his own existence; they 
formed part and parcel of his every day experience. In 
riper manhood he attended each evening after labor the 
exposition of the Scriptures. On Sabbath, on festivals, and 
on the morning of Mondays and Thursdays he was present 


as a religious duty at the public reading and interpreta- 
tion of the law. The Jew, therefore, could not but be well 
acquainted with the leading principles of his legal court 
and their general application. He was, in fact, competent 
to decide any ordinary infraction of law likely to occur in 
his own district. But to become a member of the Sanhedrin 
having an extensive criminal jurisdiction, to be qualified 
to act as judge in a trial involving the life or death of a 
fellow creature was another matter. Here legal acumen, 
proved ability, sound knowledge, and unquestioned integrity 
was required. Only such men who already served as judges 
in the lower court and were learned in the law, and versed 
in science and logic might be admitted into the Sanhedrin 
of Jerusalem, the Supreme Council of the Nation. The 
standard of qualification was necessarily high in every par- 
ticular. Accordingly, when a mandate from the capital 
authorized the formation of a great tribunal in a town, the 
residents took every precaution to nominate such men whose 
ancestry required guarantee and fitness for the position 
they were to occupy. The election of representatives who 
were not qualified was followed by refusal of a certificate 
of legality from the Great Sanhedrin. From the provencial 
Sanhedrin promotions were made as vacancies occurred in 
the higher court as stated above. 

Judges of the Great Sanhedrin were required to have 
qualifications, viz : He must have been learned in the law, 
both written and unwritten. He must have been intimately 
acquainted with the legal code, its traditional practices, the 
precedents of the colleges and the accepted decisions of 
former judges. He was required to know not only the law 
applicable to the times in which he lived, but also of times 
which were no longer in effect. 

He must have had judicial experience ; that is, he must 
have already filled three offices of gradual increased dig- 
nity, beginning with one. of the local courts and passing 
successfully through magistrates at Jerusalem. 

He must have been thoroughly proficient in scientific 
knowledge, astronomy, medicine, chemistry, and familiar 
with the arts of the necromancer. He must have been an 
accomplished linguist ; that is, he must have been thoroughly 
familiar with the languages of the surrounding nations. It 
was absolutely necessary that at least four members of the 
court should understand the language of any stranger, and 
two of those must have been able to converse in the language 
of the former. 

He must have been modest, of good repute among his 


neighbors, of good appearance, and free from haughtiness. 
He must have been pious, strong and courageous, and of 
intellectual acumen, and logical powers to be employed on 
behalf of those who were accused of crime, whose advocates 
the judges themselves were. 

A man was disqualified to act as judge who had not, or 
had never had any regular trade, occupation or profession 
by which he gained a livelihood. 

The ancient Hebrews said : ' ' He who neglected to teach 
his son a trade is as though he taught him to steal. ' ' 

A man who did not work and had never labored in the 
sweat of his brow for an honest livelihood was not qualified, 
reasoned the Hebrew people, to give proper consideration 
or extend due sympathy to the cause of litigants whose 
difficulties arose out of the struggles of everyday life. 

In trials where death penalties might be inflicted, a 
bastard or person who had never had any children of his 
own were disqualified to act as judges. No man who was 
concerned or interested in a matter to be adjudged was 
qualified to sit in judgment thereon. All relatives of the 
accused man of whatever degree of consanguity were dis- 
qualified from sitting in judgment on a case. No person 
who would be proved as heir, or otherwise, by the death or 
condemnation of an accused man was qualified to be his 
judge. The king could not be a member of the Sanhedrin. 
An aged man, because his years and infirmities were likely 
to render him harsh, perhaps obstinate and unyielding, 
could not be a member of the Sanhedrin. Under no cir- 
cumstances was a man who was known to be at enmity with 
the accused principal permitted to occupy a position among 
the judges. Such enmity was presumed to exist when a 
judge as a result of ill feeling had not spoken to the person 
charged with any offense for a period of more than three 

At first judges of Israel were not paid anything for their 
services. The honor of the office itself was considered full 
emolument for the labor performed. Indeed, the office of 
judge in Israel was so highly prized that the struggles of a 
lifetime were not considered too great to pay for a place 
in the Great Sanhedrin. Such high station was regarded as 
a sacred sphere and that the idea of mutual gain should 
not enter, and it was the hope and ambition of every father 
and mother that their son would become so wise and hon- 
orable as to become a member of the Great Sanhedrin Court. 
But in later years of the national life, a change seems to 
have taken place. The ancient rule was so far modified 


that when the services of the judge were required on days 
when he was engaged in his private pursuits, custom and 
law gave him the right to claim a substitute during the 
time he was occupied on the bench; or, in default of the 
substitute, to claim remuneration for the time he had lost. 
Another modification was that if his legal duties required 
his entire time, the judge in Israel was entitled to support 
from the common treasury and was even permitted to ac- 
cept fees from litigants. This practice was discouraged, 
however, by the Rabbis who looked with disfavor upon the 
appointment of the judges who were not entirely able to 
support themselves. 

The Hebrew mind conceived modesty to be the natural 
result of that learned dignity and piety that every judge 
was supposed to possess, and, therefore, he was required to 
be a modest man. He was required also to be a popular 
man, but this qualification of popularity, — it was wisely 
said by a noted writer, — did not convey the note of elec- 
tioneering, hobnobbing, and familiarity. It meant simply 
that the reputation of the applicant for judicial honor was 
so far above reproach that his countrymen could and would 
willingly commit all their interests of life, liberty, and 
property to his keeping. By good appearance was meant 
that freedom from physical blemishes and defects, and that 
possession of physical endowment that would inspire re- 
spect and reverence in the beholder. The haughty judge 
was supposed to be lacking in the elements of piety and 
humility which qualified him for communion with God. And 
finally it may be added that an election to a seat obtained 
by fraud or any unfair means was null and void. No re- 
spect was shown for the piety or learning of such judge. 
His judicial mantle was spat upon with scorn, and his fellow 
judges fled from him as from a plague or pest. Hebrew 
contempt for such a judge was expressed in the maxim: 
"The robe of an unfairly elected judge is to be respected 
not more than the blanket of an ass." 

Being the aim and hope of every Jewish parent that 
they may have reared a son, who would be qualified to sit 
as a judge in the Sanhedrin Court, made this pride of par- 
ents a continual stimulus, which caused every ambitious 
young Jewish man to aspire to this high honor. 

The other grounds for disqualification of person to be- 
come a member of the Sanhedrin Court were equally exact- 
ing, and among those other causes for disqualification are 
these : All who made money by dice playing, by any games 
of hazard, by betting on pigeon-matches and similar ob- 


jectionable practices, were not only incapable of becoming 
members of the tribunal, but were not permitted to give 
evidence in a trial. A man who gained money by the amuse- 
ments named was regarded as actually dishonest. A Jew 
who was in the habit of lending money on usuary was in 
like manner disqualified. The disqualification extended not 
only to those who took usuary of the brethren, but even to 
cases where the money had been loaned to one of another 
religion or a heathen. Nor could a slave dealer sit as a 
judge. The Talmud stigmatised such a person as inhuman 
and unfeeling, and, therefore, incapable of deciding any 
issue involving the life or liberty or even property of an- 

When, therefore, the Talmud insisted upon a high stand- 
ard of qualification for the members of the Sanhedrin, it 
was animated not alone by a due and proper regard for the 
dignity of the judicial office, but a merciful consideration 
for the offender, and a desire to secure for the accused, one 
whom they looked upon as an unfortunate brother, the ad- 
vantage of qualified and skillful and learned counsel. 

The basic principle of the Jewish law was that any viola- 
tion against the commandments or precepts of God, as ex- 
pressed in the Scriptures, was a punishable act. In it, the 
notion of crime was not distinguished from sin. 

The prosecutor attended before the Sanhedrin and 
lodged his complaint. The officer appointed by the court 
for that purpose sought the accused person and brought him 
before the tribunal. The witnesses were summoned and 
heard. The judges performed the duties of both judge and 
jury. The provisions of the law in the modern sense of 
the term was no part of the judicial system of the ancient 
Hebrews. The judges and disciples performed all the duties 
of the modern attorney and counsellor at law. The prophets 
were the sole orators of Hebrew life, but they were never 
allowed to appear in court as defenders of the accused. 
There was no such officer as public prosecutor or State's 
Attorney known to the laws of the ancient Hebrews. The 
witnesses to the crime were the only prosecutors required 
by Hebrew criminal jurisprudence, and in capital cases they 
were the legal executors as well. There was no such body 
as the modern grand jury known to the Hebrew law, and 
no similar body or committee of the Sanhedrin performed 
the accusatory functions of the modern grand jury. The 
witnesses were the only accusers and the testimony was 
both the indictment and the evidence. Until they testified 


the man suspected was deemed not only innocent, but un- 

The crime of false swearing required special notice — 
Talmudic construction of this law awarded the same kind 
of death to him who had sworn falsely against his brother 
that would have been meted out to the alleged criminal, if 
the testimony of the false swearing had been true. 

The accuser and the accused stood during the trial and 
the judges sat. The court, however, had the right to allow 
one of the parties to sit down. In regard to the order of 
cases on the calendar, the order of arrival was followed. 
However, some exceptions were allowed in regard to or- 
phans, widows and scholars. The cases of orphans pre- 
ceded all others ; the widows cases drew precedence over the 
scholars, and the scholars over ordinary cases. 

When the parties appeared in court the trial began. 
After the testimony was heard, the argument of each of the 
parties had to be produced in the presence of both of them. 
The judges had no right to hear one party without the other. 
The judges during the argument were supposed to be silent 
listeners. They had no right to interfere even when one 
of the parties did not follow the rules of the court, and for 
instance, should one party bring only one witness, the judge 
could not confuse him by saying one witness is not suffi- 
cient. The judge, however, was allowed to help a party if 
for any reason he could not state his argument accurately. 
The arguments had to be delivered orally. With the consent 
of the parties the court clerk took the arguments down in 
order that the litigants might not change them later. The 
cost of employing clerks was covered by both parties. No one 
could speak against the accused, but argument could be 
made in his favor. If the judge understood the language 
spoken by the parties, but could not answer in the same 
language, he was allowed to use the services of an inter- 

At the close of the morning sacrifice the members of the 
court entered the judgment hall in solemn procession. They 
took their seats, turbaned, on cushions or pillows in Oriental 
fashion, with crossed legs and unshod feet, in a half circle. 
The High Priest sat in the center with other members of 
the court to the right and left of him. His head was 
crowned with a turban of blue inwrought with gold. On 
his bosom hung the priestly breastplate in which glittered 
twelve precious stones, emblematic of the twelve tribes of 
Israel. A flowing robe of blue, gathered about his waist 
by a girdle of simple scarlet and gold embroidery enveloped 


his person and set off the pure white linen of his capacious 
sleeves. The buttons of this costly robe were onyx stones. 
His slippered feet were half concealed beneath the long 
fringe of his priestly vestments, which were curiously em- 
broidered with pomgranites in gold, scarlet and crimson. 
No pontiff of any religion ever wore robes more resplendant 
than those in which the high priest were attired on public 
and state occasions. 

Immediately in front of the semi-circle of judges sat 
three rows of disciples, every row numbering three and 
twenty judges; thus every judge was assisted by his three 
juniors. The disciples were by no means young and in- 
experienced students, but were none of them in anywise 
inferior to the members of the court itself. 

As has already been said, any vacancies in the first row 
were filled up from the second, and the second was recruited 
from the number of learned men to be found in every place 
having a permanent Sanhedrin. Three scribes were pres- 
ent ; one sat on the right, one on the left, and the third in 
the center of the hall. The first recorded the names of 
the judges who voted for the acquittal of the accused and 
the arguments upon which the acquittal was grounded. The 
second gave the names of such who decided to condemn the 
prisoner, and the reasons upon which the conviction was 
based. The third kept an account of both sides so as to 
be able at any time to supply omissions or check inaccu- 
racies in the memorandum of his fellow members. In addi- 
tion to these there were still others who exercised sentences 
and attended to all the police work of legal procedure. The 
accused was placed in a conspicuous position where he could 
see everything and be seen by all. Opposite to him in full 
view of the court were the witnesses. Thus organized and 
so arranged, the judges of the Sanhedrin commenced to 
consider the cases before them. 

If the defendant was summoned to court several times 
and refused to come, testimony was accepted in his ab- 
sence. No testimony was given at night, and the court held 
no night session as it was considered that the judges would 
be too fatigued to give the trial the careful consideration 
it deserved, and no trial begun the eve before a religious 

Before the witnesses testified there was an admonish- 
ment to them to tell the truth and to give all the information 
they possessed. This was done publicly. They were ex- 
amined one by one. In capital cases the only evidence ef- 
fective which Jewish law took cognizance was that testified 


to in open court by witnesses, but documentary evidence 
was used in civil cases. The judges could not convict any 
one in a capital case on the strength of his own testimony. 
The act must have been seen by both witnesses simulta- 
neously, and they must have seen each other. Every adult 
Jew of the male sex of religious and moral integrity not 
related to the accused nor to the judge, could be a witness 
in a capital cause. The witnesses were subjected to the 
strictest and severest examination. Strong admonition to 
the witnesses was announced; they were threatened and 
warned that the blood of the accused would rest upon them 
and upon their children. The testimony was given orally in 
a language understood by the court. The examination was 
conducted in public in the presence of the accused and in 
the presence of the whole court. Before the witnesses came 
before the court they were first conducted in private by 
judges deputized for that purpose, where a preliminary ex- 
amination was had. All testimony not in accordance with 
laws of evidence was immediately declared inadmissable and 
could not be deposed to in open court. Hence, in all cases 
where discrepancies were discovered during the preliminary 
investigation, the statements of the witnesses were not sub- 
mitted to the judges. That is, the committee appointed 
took the witnesses in private before the trial and heard 
their testimony and cautioned them about giving any tes- 
timony which was considered incompetent or not admissable, 
so that when they testified before the whole court no in- 
competent or inadmissable evidence was heard by the 
judges who heard the case. There was, therefore, no pos- 
sibility of the Sanhedrin being prejudiced or influenced by 
any testimony that failed to satisfy the rules of evidence. 
To procure the condemnation of an accused person, two 
competent witnesses independent and not related were ab- 
solutely necessary. No evidence as to the prisoner's ante- 
cedents was admitted. No previous conviction might be 
urged against him. No proofs of character, good or bad, 
were allowable. Extenuating circumstances were noted but 
only by the judges. In no case was a witness permitted to 
make a statement for or against the accused. The evidence 
was strictly confined to replies elicited in response to lead- 
ing questions from the judges. Hearsay and presumptive 
evidence was rejected as worthless, and circumstantial evi- 
dence was inadmissable. 

The rules of evidence as formulated in the Talmud are 
of a remarkable character. They are in most respects unlike 
those of any ancient legal code, and are diametrically op- 


posed to our modern practice in every important particular. 
The primary object of the Sanhedrin was to render convic- 
tions of an innocent person impossible. All the ingenuity 
of the Jewish legist was directed to attainment of this end. 
Everywhere the punishment of the guilty seemed subordi- 
nate to this principal consideration. The credibility of 
witnesses must bo established beyond doubt; their impar- 
tiality must be placed above suspicion. The likelihood of 
prejudice animating any person testifying against the 
prisoner must be carefully sought out. 

No person could incriminate himself, nor could the wife 
give evidence against her husband. On the other hand, a 
person was not debarred from testifying in his own behalf. 
Any argument he wished to urge irrespective of its legal 
worth was heard by the judges. And while under Hebrew 
law the accused was never compelled to testify against him- 
self, he was permitted and encouraged to offer testimony 
in his own behalf. His confession of guilt was accepted 
in evidence and considered in connection with other facts 
and circumstances in the case, but was never permitted 
standing alone to form the basis of a conviction unless it 
was corroborated by two other witnesses. 

It was considered that a confession could be made as a 
result of weakness or of folly or of interest. For some 
weak-minded people unable to support the torture of a 
harassing examination and eager to regain their liberty, 
might make a full confession, accusing themselves in order 
not to be indicted, and was likened to the person who 
crossed a turbulent stream on a small log, threw himself 
through nervousness into the rushing water in trying to 
prevent a fall. And fools from a want of responsibility, 
or through a boastful nature might answer or confirm or 
confess everything of which they know nothing. 

It was settled under the Talmudic law that whoever 
would not tell the truth without swearing to it would not 
scruple to assert falsehood under oath, so no oath was 
required in the modern sense. All testimony was given 
under a solemn sanction of the ninth commandment: 
"Thou shalt not bear false witness against thy neighbor." 

The following are the remarks of the presiding officer 
of the Sanhedrin to the witness : 

"Forget not, witness, that it is one thing to give evidence in 
a trial as to money and another in a trial for life. In a money suit, 
if thy witness-bearing shall do wrong, money will repair that 
wrong. But in this trial for life, if thou sinnest, the blood of the 
accused and the blood of his seed to the end of time shall be 


imputed unto thee. . . . Therefore was Adam created one man 
and alone, to teach thee that if any witness shall destroy one 
soul out of Israel, he is held by the Scripture to be as if he had 
destroyed the world; and he who saves one such soul to be as if 
he had saved the world. . . . For a man from one signet ring may 
strike off many impressions, and all of them shall be exactly alike. 
But He, the King of the kings of kings, He the Holy Blessed, has 
struck off from His type of the first man the forms of all men 
that shall live, yet so that no one human being is wholly alike to 
any other. Wherefore let us think and believe that the whole 
world is created for a man such as he whose life hangs on thy 
words. But these ideas must not deter thee from testifying to 
what thou actually knowest. The Scripture declares : ' The wit- 
ness who hath seen or known, and doth not tell, shall bear his 
iniquity.' Nor must you scruple about becoming the instrument 
of the alleged criminal's death. Remember the Scriptural maxim : 
'In the destruction of the wicked, there is joy.' " (Benny — Crim- 
inal Code of the Jews.) Prom "The Trial of Jesus Christ" by 
A. C. Bisek. 

With regard to witnesses, puberty or adolescence 
marked the age which qualified a person to be a witness 
in a criminal case; that is, the thirteenth year must have 
been passed. 

With regard to the requirement that two eye witnesses 
must testify as to overt acts, this was taken from the Mosaic 
ordinance referring to the rule, thusly: "At the mouth 
of two witnesses, or three witnesses shall he that is worthy 
of death be put to death, but at the mouth of one witness 
he shall not be put to death." Deut. 17:6. "Whosoever 
killeth any person, the murderer shall be put to death by 
the mouth of witnesses, but one witness shall not testify 
against any person to cause him to die." Numbers 35:30. 

The witnesses were required to agree in all essential 
details, else their testimony was invalid and had to be 
rejected. This only applied in criminal cases. 

The deliberation of the judges opened with an argument 
for the defense. It was opened by the youngest of the 
judges. This was done so that the opinion of the youngest 
member of the court would not be overawed by the judg- 
ment of the older and mature members; that is, so each 
judge would give his independent opinion in their argu- 
ments for the defense. A voice was granted to the candi- 
dates in the rows, but not for condemnation. Witnesses 
were not allowed to advance arguments for the defense, 
but the accused could, if he wanted to do so. 

Had one of the court members gone on record on the 
side of the defense, he could not retract his statement and 


change his opinion for condemnation. Had he argued for 
condemnation he could change to the defense. There was 
no difference whether the change was during the argument 
or the taking of the decision; the same rule held good. 

In giving the decision the reason for voting had to be 
furnished, the one vacillating in his opinion need not fur- 
nish any reason for so doing. If one of the defenders erred 
in giving his reason for acquittal, the secretary reminded 
him of that fact. If this happened to one who found the 
accused guilty, the secretary was silent. The deliberations 
could only begin with an argument in favor of the accused. 
Nothing was therefore urged until one of the judges found 
some fact or facts telling against the prosecuted. The 
members of the Sanhedrin then arose and alluding to the 
circumstances, said: "According to such and such state- 
ment, it appears to me that the prisoner must be ac- 
quitted." The discussions thereupon were general. 

The high priest, who was generally president of the 
Sanhedrin, addressed a gentle admonition to the youngest 
member, who was never less than forty years of age, to 
render a free and untrammeled verdict, and not to be awed 
or influenced by the patriarchs of the court. This admoni- 
tion was repeated in the case of each junior member of the 
tribunal. When the balloting commenced each judge arose 
in his place and voted. At the same time making a short 
speech explanatory of his ballot. To secure a conviction 
it was not necessary that the vote of the members of the 
Sanhedrin should be unanimous. Indeed a peculiar rule of 
Hebrew law provided that if the verdict was instantaneous 
and unanimous, it was invalid and could not stand. If the 
prisoner had not a single friend in court the element of 
mercy was wanting in the verdict, said the ancient Hebrews, 
and the proceedings were regarded in the light of con- 
spiracy and mob violence. The majority of in his favor 
would acquit. Any majority amounting to two or more 
that did not reach unanimity was sufficient to condemn, 
and it was further regarded by ancient Hebrew law that if 
there was a unanimous verdict to convict, that the trial 
was not fairly considered because among seventy-one 
judges, all having independent minds, that if they had 
given careful consideration of the trial and impartially 
considered it, that there must have been some one in favor 
of the accused, and therefore the trial was declared illegal 
and set aside; but if there was a unanimous verdict for 
acquittal the verdict stood. 

The procedure in a capital trial differed in many im- 


portant respects from that adhered to in civil trials. The 
following is a striking contrast between capital trials and 
money trials, as noted by Bisek in his " Trial of Jesus 

"Money trials and trials for life have the same rule of inquiry 
and investigation. But they differ in procedure in the following 
points : the former require only three, the latter three-and-twenty 

"In the former it matters not on which side the judges speak 
who give the first opinions ; in the latter, those who are in favor 
of acquittal must speak first. 

"In the former, a majority of one is always enough; in the 
latter, a majority of one is enough to acquit, but it requires a 
majority of two to condemn. 

"In the former, a decision may be quashed on review, (for 
error), no matter which way it has gone; in the latter, a con- 
demnation may be quashed, but not an acquittal. 

"In the former disciples of the law present in the court may 
speak (as assessors) on either side; in the latter, they may speak 
in favor of the accused, but not against him. 

"In the former, a judge who has indicated his opinion, no 
matter on which side, may change his mind ; in the latter, he who 
has given his voice for acquittal may not change. 

"The former (money trials) are commenced only in the day- 
time, but may be concluded after nightfall; the latter (capital 
trials) are commenced only in the daytime, and must also be 
concluded during the day. 

"The former may be concluded by acquittal or condemnation 
on the day on which they have begun; the latter may be con- 
cluded on that day if there is a sentence of acquittal, but must be 
postponed to a second day if there is to be a condemnation. And 
for this reason capital trials are not held on the day before the 
Sabbath or a feast day." 

In case of acquittal the prisoner was immediately re- 
leased and the trial closed. In the event of conviction, 
sentence could not be pronounced until the next afternoon 
and the session of the court was accordingly adjourned 
until the following day. The second part of the trial was 
then begun. 

It must be remembered that there were two trials of 
every Hebrew capital case. The second day of the hearing 
was not a new trial, but a proceeding in the nature of an 
appeal and was intended to accomplish a review of the 
proceedings of the previous day. Additional testimony, 
however, which had been discovered after the close of the 
first trial might be introduced. But the record of facts 
seems not to have been considered so important as the 


question of the fixed opinions of the judges. Each member 
of the Sanhedrin was required on the second day to vote 
again and to declare anew his notions concerning the guilt 
or innocence of the accused. The statements of each judge 
were carefully noted by the scribes and compared with his 
statements of the previous day. If any judge voted for 
conviction at the second trial and founded his judgment 
on reasons and arguments radically different from those 
of the first day, his verdict was rejected. A member who 
had voted for acquittal on the first day was not permitted 
to change his vote for conviction on the second day; but 
one who voted for conviction at the first trial might by 
giving valid reasons, vote on the second day for acquittal. 

When the balloting was complete the number for and 
against the accused was again announced. If a majority 
of at least two were registered against the accused he 
stood convicted a second time. 

The death march and the final circumstances attend- 
ing the execution of a Hebrew prisoner are without parallel 
in the jurisprudence of the world. As the prisoner was 
led away to his doom, a man carrying in his hand a flag, 
was stationed at the entrance of the Sanhedrin Hall. A 
mounted officer of the court followed the procession at a 
convenient distance and kept his eyes constantly turned 
in the direction of the flag bearer on the hill. A herald 
carrying aloft a staff from which fluttered a crimson ban- 
ner, made proclamation to the gazing multitude along the 
way that a human being was about to be executed. He 
cried aloud : ' i This man is to be put to death on the testi- 
mony of witnesses so and so on such and such a charge. 
If any man knows anything favorable to the accused, in 
the name of God let him come forth and speak, in order 
that the prisoner may be led back to the Sanhedrin Hall, 
to be again confronted and tried by his judges.' 9 

If any witness, friend or stranger, came forth to fur- 
nish new evidence in favor of the condemned man, the 
procession was halted and the accused was led back to the 
Sanhedrin Chamber. If any member of the court still 
sitting in the hall of judgment thought of any new evidence 
in behalf of the accused that had not been offered at the 
trial, he arose quickly in his place and stated it to his fellow 
judges. The flag at the gate was then waved and the 
mounted messenger, chosen for such an emergency, saw it 
waving and galloped forward to stop the execution. 

The prisoner himself could delay or prevent the ac- 
complishment of the death penalty if he could give to the 


Rabbi who escorted him any valid reason why he should 
not be put to death. He was led back as often as he gave 
a good excuse, not exceeding five times, the number pre- 
scribed by law. If no new witnesses appeared and the 
prisoner made no further plea for life, the procession 
proceeded to within a short distance of the place of execu- 
tion. The prisoner was then exhorted to declare himself 
guilty of the crime of which he was charged and to make 
full confession of all his sins. He was then led to the 
ground of execution. He was given a mixture to render 
him unconscious of his impending doom and insensible to 
the agonies of death, and this mixture was prepared by the 
Hebrew women in tender and merciful regard for the 
wretched prisoner who was about to die. The prisoner was 
either stoned, strangled, burned or beheaded, according to 
the nature of the crime. Death by crucifixion was not 
practiced by the Hebrews. Soon after the execution the 
friends and relatives of the dead man made friendly calls 
upon the judges who had tried and sentenced him. The 
visits were intended to show that the visitors harbored no 
feelings of bitterness or revenge against those who, in 
condemning one of their loved ones to death, had only 
performed the high and righteous duties of just and hon- 
orable judges in Israel. 

A verdict of acquittal could never be reversed, but a 
verdict for conviction could. Even the accused himself 
had a right to say: "I have some new evidence in my 
favor." Whereupon he was brought back. The first two 
times he was taken back by mere statements. After that 
he had to give some reason. In order to save time and 
futile impediments two court members accompanied him 
and listened to his arguments, and if they thought them 
worthy he was returned as many times as necessary. If a 
convicted person escaped from court and later brought 
back, no reversal followed. 

Time of court sessions was from morning services until 
noon, but if necessary it could be continued in the after- 
noon, and even at night in civil cases, but never at night in 
criminal cases. However, no original jurisdictional pro- 
ceedings of whatever nature could begin at night. Capital 
offenses could only be decided by daylight. Days on which 
court could not be held were on holidays and on the sabbath, 
and it was not held even on the eve of these days. 

And from the various authorities reviewed I may suc- 
cinctly state the High-Lights of the Great Sanhedrin, as 
follows : 


No person could be convicted of a capital offense on 
less than the testimony of two witnesses to the same overt 
act. One witness was regarded as no witness. It required 
two or more whose testimony must agree and relate to one 
and the same offense. 

No person could be compelled to be a witness against 
himself, and even his voluntary confession was not compe- 
tent to convict him. 

Circumstantial evidence was not admissable against the 
accused, and every presumption was indulged in favor of 
his innocence until the final verdict of guilty was pro- 

The trial of a person charged with a capital offense had 
to be conducted in public, and no evidence could be pro- 
duced in his absence. 

The trial of a capital case could not be heard at night- 
time, on the Sabbath or on a festal day, and could not be 
begun on the eve of such days and no sentences could be 
executed on such days. 

Sentences upon a verdict of guilty could not be pro- 
nounced until the third day after the findings, and then 
only after a second vote returned the same as the first. 

All witnesses for the prosecution were required to be 
admonished before giving their testimony, to remember 
the value of human life and to take care that they forget 
nothing that would be in the prisoner's favor. 

All witnesses testifying against the accused were re- 
quired, in case he was convicted of a capital offense, to 
take an active part in inflicting the death penalty, in order 
to add great certainty to their testimony. 

The false witness was subjected to the same penalty he 
voted by the false testimony to impose upon the accused. 

It was the axiom of this law that the function of the 
court was to save and not destroy human life. 

The court could neither act as prosecutor nor accuser, 
but under the law was required to protect and defend the 
accused. As both judges and jurors it was their sole duty 
to determine the question of guilt or innocence according 
to the law and evidence. 

At the conclusion of the evidence one of the judges 
made a brief summary thereof, whereupon all the specta- 
tors were removed from the court room and the judges 
proceeded to ballot. 

If the majority of the court voted for acquittal, the 
accused was set at liberty; but if a majority voted for 
conviction no announcement of the findings could then be 


made. At least one day must intervene between the vote 
of conviction and the pronouncement of the verdict of 
guilty and the sentence. During the interval the judges 
could not be occupied with any matter that would divert 
their minds from the case. After the morning sacrifice 
on the third day following the vote for conviction, the 
court must return to the judgment hall and proceed to take 
another vote. A judge who voted to condemn originally 
might now change his opinion and vote to acquit, but one 
who voted to acquit at the first hearing was not permitted 
to change his opinion and vote for conviction. 

Under the law it was the duty of the court to defend the 
accused, and a verdict of guilty without some member of 
the court having interposed a defense was invalid. 

A unanimous vote of guilty was considered as indica- 
tive of a conspiracy against the accused, that he had no 
friends or defenders and that the verdict was arrived at 
without material consideration. Under the law such ver- 
dict had the effect of an acquittal. 

Any indignities inflicted upon the accused during the 
progress of the trial subjected those who permitted them 
to the same punishment as if they were inflicted upon one 
not accused. 

The presumption of innocence attended the accused until 
the final vote of guilty was announced, and until then the 
court was bound to protect him from insult or injury. 

As I stated in the very beginning of this article, the 
discussion would be limited to only one branch of Hebrew 
Jurisprudence ; that is, the criminal procedure in the Great 
Sanhedrin Court, and it may be appropriate to here state 
that under the legal system of the Sanhedrin Courts, there 
were three kinds of tribunals for the administration of 
justice : 

1. Petty courts composed of three judges, and competent to 
adjudicate upon civil causes only ; 

2. The provincial Sanhedrin, consisting of three-and-twenty 
judges, and having criminal jurisdiction to a limited extent, as 
well as the power of deciding all civil matters ; and 

3. The Great Sanhedrin of Jerusalem, which was of supreme 
authority of the nation, and functioned as an appellate court for 
all the lesser or lower Sanhedrin Courts, and also, as a trial court 
for large civil cases and those criminal causes in which the penalty 
was great, or as we say felony cases. 

The rules of evidence in the civil causes were not so 
strict, as in the criminal cases of which I have detailed. 
It has been my idea, object, and purpose in the presen- 


tation of this subject to make an exposition of a jurispru- 
dence, which had its existence in the remote past and comes 
to us as an ancient legal system, strictly from an historical 
point of view, as being of interest to every student of the 
law ; giving the mode of procedure of that court formulated 
and established out of the ideas of religion, morality, and 
the standards of living among the ancient Hebrews long 
before the Christian Era, I have not attempted nor do I 
desire to either justify or condemn any particular trial, 
which took place before that court; but I merely desire to 
submit the simplicity of its organization, the rules of pro- 
cedure, the mildness of its punishments, and the humanity 
throughout apparent, which may be left to speak for them- 

This paper is the result of research gathered extensively from numerous 
sources, and I desire especially to give credit to those from whom I have 
quoted copiously and some times verbatim, as follows: 
Civil and Criminal Procedure of Jewish Courts 

By Rabbi Meyer Waxman. 

In the 1914 Student's Annual Jewish Theological Seminary. 
The Trial of Jesus 

By Walter M. Chandler. 
History of the Jews 

By Heinrich Graetz. 
The Story of Law 

By John M. Zane. 
The Jurisprudence of The Jewish Courts in Egypt 

By Erwin R. Goodenough. 
The Trial of Jesus Christ 

By Andrew C. Bisek. 
Martyrdom of Jesus 

By Rabbi Isaac M. Wise. 
The Trial of Jesus 

By George W. Thompson. 
Origin of Republican Form of Government 

By Oscar S. Strauss. 
The Jewish Encyclopedia. 
Dr. William Ackerman, Rabbi, Temple Beth Israel, Meridian, Mississippi, 

who gave me much valuable information regarding this subject in my 

numerous conversations with him concerning the Sanhedrin Courts. 

To all of whom I am very grateful. 


By H. H. Creekmore* 

On December 16th, 1930, William Sprague, farmer and 
town clerk of Wantage, New Jersey, was, nationally speak- 
ing, unknown. Over night his name was broadcast over the 
entire nation, not on account of anything he had accom- 
plished, but because an indictment returned by the Federal 
Grand Jury of the District Court of New Jersey was 
quashed on the ground that the adoption of the Eighteenth 
Amendment was invalid. 

The publicity gained by farmer Sprague, whose labor 
shortly before that time had caused him to become thirsty, 
was insignificant with that accorded the jurist who handed 
down the astounding opinion, some fifteen thousand words 
in length, holding that the Eighteenth Amendment had not 
been validly ratified by the constitutional number of states. 
The Judge of the Court was Honorable William Clark, 
Harvard trained, thirty-nine years of age, and the youngest 
member of the Federal judiciary. 

The case arose by an indictment presented by the Fed- 
eral Grand Jury sitting in a District Court of New Jersey. 
In the indictment William H. Sprague and another were 
charged with violation of the National Prohibition Law, 
particularly Section 3 of title 2 of the National Prohibition 
Act, prohibiting the transportation and possession of in- 
toxicating liquor. The defendants filed a motion to quash 
the indictment : the chief ground of the motion was the 
alleged invalidity of the Eighteenth Amendment by reason 
of the fact that it was ratified by the legislatures of various 
states and not by constitutional conventions of the respec- 
tive states. Upon Judge Clark sustaining the defendants 
motion and quashing the indictment an appeal was im- 
mediately taken by the government to the Supreme Court 
of the United States, as by law permitted in such cases. 

The exact holding of Judge Clark in quashing the in- 
dictment, sustained the motion of the defendants on the 
main ground relied on therein, that is; the Eighteenth 
Amendment is invalid because of its adoption by means 
of ratification of state legislatures instead of by constitu- 
tional conventions of the states. 

* Member of the Jackson, Mississippi, Bar. 


This holding of Judge Clark's caused widespread dis- 
cussion, particularly in legal circles. It raised not only 
the question of the validity of the adoption of the Eight- 
eenth Amendment, but necessarily it brought into mental 
review the status of all of the other Amendments and the 
extreme possibilities that might flow from an affirmance 
of the opinion of the District Judge in the Sprague case. 
Judge Clark began his opinion with this statement: 

"The traditional method of adopting amendments to the 
United States Constitution is challenged. Upon the outcome of 
that challenge depends the disposition of the case at bar. Even 
if this opinion meets with a cold reception in the Appellate 
Courts, we hope that it will at least have the effect of focusing 
the country's thought upon the neglected method of considering 
constitutional amendments in conventions." 

The learned District Judge is somewhat of a prophet for 
as later events show his opinion met a cold reception in the 
Supreme Court of the United States, but it did direct the 
attentive thought of the lawyers in America, upon the meth- 
ods of ratifying constitutional amendments. 

The decision in this case, to the non-legal mind, brought 
two entirely dissimilar reactions. One is typified by the 
statement attributed to the defendant Sprague when told of 
the decision; he said: 

"Prohibition is a farce. I always knew the Eighteenth 
Amendment wasn't Constitutional. People should be able to 
drink what they want." 

The other view was expressed by adherents of the Anti- 
Saloon League and other Drys who said Judge Clark was 
in rebellion against the Constitution and was trying to se- 
cure poltical favor from wet New Jersey and was ambitious 
to be Governor of that state. 

To these declarations and accusations, Judge Clark re- 
plied that he would not consider any political office. 

The Sprague case was but the culmination of an attack 
that has been continuously and consistently made on the 
Eighteenth Amendment and the methods of its adoption 
since it was first put into the constitution. Counsel for 
Sprague consisted of Frederic M. P. Pearse, of Newark, New 
Jersey ; Selden Bacon, Daniel Cohalan, and Julius Cohen, all 
of New York City. These same attorneys have been since 
1927 actively engaged in an effort to have the Eighteenth 
Amendment declared invalid on account of its ratification 
by state legislatures ; and on this precise point Judge Clark's 
decision in the Sprague case rested. 


To follow the argument on the question it may be helpful 
to set out here certain constitutional provisions. 

Section 3 of the Eighteenth Amendment reads as follows : 

"This Article shall be inoperative unless it shall have been 
ratified as an amendment to the constitution by the legislatures 
of the several states as provided in the constitution, within seven 
years from the date of the submission hereof to the States by the 

The Eighteenth Amendment was submitted to the States 
by the Congress December 19th, 1917 and proclamation that 
it had been ratified by the legislatures of the necessary num- 
ber of states was issued on January 29th, 1919. 
Article 5 of the Constitution is as follows : 

"The Congress, whenever two-thirds of both Houses shall 
deem it necessary, shall propose Amendments to this Constitu- 
tion, or, on the application of the Legislatures of two-thirds of 
the several Statesi, shall call a Convention for proposing Amend- 
ments, which, in either case, shall be valid to all intents and 
purposes, as Part of this Constitution, when ratified by the Legis- 
latures of three-fourths of the several States, or by Conventions 
in three-fourths thereof, as the one or the other mode of ratifica- 
tion may be proposed by the Congress ; Provided that no Amend- 
ment which may be made prior to the year one thousand eight 
hundred and eight shall in any manner affect the first and fourth 
clauses in the ninth section of the first article ; and that no State, 
without its consent, shall be deprived of its equal suffrage in the 

Amendment Ten to the Constitution reads : 

"The powers not delegated to the United States by the Con- 
stitution, nor prohibited by it to the States, are reserved to the 
States respectively, or to the people." 

From a casual reading of Article Five, it would seem 
clear that Congress in submitting the Eighteenth Amend- 
ment had chosen one of the two methods provided for the 
ratification of the proposed Amendment, and that the ques- 
tion was thereby foreclosed to further argument, but until 
the decision of the Supreme Court of the United States on 
the Sprague appeal, the proposition was not as simple as 
it might appear to the non- judicial mind. The proposition 
argued by the attorneys for Sprague was widely heralded 
as a new and different attack on the Eighteenth Amend- 
ment, but the fact is, it was not a new theory, for a number 
of articles by distinguished members of the bar, discussing 
practically this same theory and advancing the same argu- 
ment have been published in different law periodicals for 


a number of years : See. "Is there An Eighteenth Amend- 
ment." By White, in 5 Cornell Law Quarterly; McGovney. 
"Is the Eighteenth Amendment void because of its Con- 
tents." 20 Columbia Law Review 499; Abbott. "Inaliena- 
ble Rights and the Eighteenth Amendment. " 20 Columbia 
Law Review, 185. 

Mr. Justin DuPratt White in his Article in Cornell Law 
Quarterly, above referred to, says : 

''The soundness of three legal propositions must be apparent 
without any very deep readings of the constitution or prolonged 
reflection on the theory of our government, namely, first, that 
intra-state prohibition cannot be the subject of a valid constitu- 
tional amendment in the sense in which amendments are referred 
to in the constitution ; second, that such prohibition cannot be 
grafted upon the constitution without the consent of the people 
of all the states ; and third, that such consent cannot be given by 
the legislatures of the states, but must come from conventions duly 
convened in accordance with a specific vote of a majority of the 
enfranchised citizens of the states respectively. ' ' 

In this Article Mr. White in defense of his position con- 
tends for the old States Rights Doctrine more strongly per- 
haps than did any Southern statesman during the fifties. 

But it is made manifest that the point on which the de- 
cision in the Sprague case turned was not a new one when 
we examine reports of decisions in cases arising some years 
ago. In fact before the Eighteenth Amendment had been 
ratified by a sufficient number of states to become effective, 
the Governor of Maine in conformity to a practice that pre- 
vails in that State, submitted to the Supreme Court of his 
State for their judicial determination the question, whether 
the joint resolution of the legislature of the State ratifying 
the Eighteenth Amendment must be referred to the people 
of the State for adoption or rejected by them. In answering 
this inquiry the Maine court held that the ratification of 
the proposed Amendment was complete, final and conclusive 
so far as Maine was concerned when the legislature passed 
the resolution. In its formal opinion reported in 107 At- 
lantic, 673, 5 A. L. R. 1412, the Court said: 

"It admits of no doubt that in the matter of amendment which 
is covered by Article 5, the people divested themselves of all 
authority, and conveyed the power of proposal upon Congress or 
upon a national constitutional convention, and the power of rat- 
ification upon the state legislature, or upon state constitutional 

The court further held that Congress in proposing con- 


stitutional amendments did not act in the exercise of ordi- 
nary legislative power, but was acting in behalf of and as 
the representative of the people of the United States under 
the power expressly conferred by Article 5. The court also 
made mention of the fact that Congress in all other proposed 
amendments has prescribed for ratification, only the method 
of ratification by the legislatures, and that the legislatures 
in ratifying an amendment did not, strictly speaking, act 
in the discharge of its legislative duties as a law making 
body, but in behalf of and as representatives of the people 
as a ratifying body. And it was pointed out that the people 
through their constitution might have clothed other bodies 
with the power of ratification or might have reserved that 
power to themselves to be exercised by popular vote, but 
since they did not do so, they retained no power of ratifica- 
tion in themselves, but conferred it completely upon the 

The same point was presented and argued in the so- 
called "National Prohibition Cases of 1920,' ' but the court 
did not respond directly to that argument in its decision 
of the case although its conclusions of law as announced 
necessarily and impliedly decided the proposition adversely 
to its proponents. 

To reach the conclusion and render the decision in the 
Sprague case invalidating the Eighteenth Amendment for 
the reasons stated in the opinion, required great research 
and considerable mental agility and certainly a large meas- 
ure of courage and strength of character on the part of 
Judge Clark. I say this because; First, All nineteen 
Amendments have been ratified by action of state legisla- 
tures. Second, the Pocket Veto Case, Okanogan etc. Indian 
Tribe vs. United States, 279 United States, 655 (1928) re- 
announced a rule of public policy to the effect that great 
weight should be given to a long and established practice 
in determining the true construction of a constitutional pro- 
vision. Third, the opinion of the Court in the "National 
Prohibition Case," states that the Eighteenth Amendment, 
"by lawful proposal and ratification has become a part of 
the constitution." Fourth, Article 5 in language so clear 
that he who runs (if not a lawyer) may read, says that 
proposed amendments shall become a part of the constitu- 
tion, "when ratified by the legislatures of three-fourths of 
the several states, or by conventions in three-fourths there- 
of as one or the other mode of ratification may be proposed 
by the Congress." Fifth, it was necessary for Judge Clark 
to break away from the doctrine of stare decisis, and de- 


termine the case from "a scientific approach to the problem 
of government," and then found it also necessary to modify 
the language of Article 5 quoted above, by reason of, * ' the 
principles of political science.' ' 

The Supreme Court in the Pocket Veto Case, supra, 

"The views which we have expressed as to the construction 
and effect of the constitutional provision here in question are 
confirmed by the practical construction that has been given to 
it by the Presidents through a long course of years, in which 
Congress acquiesced. Long settled and established practice is a 
consideration of great weight in a proper interpretation of con- 
stitutional provisions of this character. ' ' 

Other cases were quoted from, to the effect that a prac- 
tice of at least twenty years duration on the part of the 
execution department, acquiesced in by the legislative de- 
partment, while not absolutely binding on the judicial de- 
partment, is entitled to great regard in determining the 
true construction of a constitutional provision, the phrase- 
ology of which is in any respect of doubtful meaning. 

All nineteen Amendments to the Constitution have been 
ratified by the legislatures of the States, and the Eight- 
eenth Amendment specifically provides that it shall go into 
effect only after being ratified by the legislatures of the 
several States within seven years from the date of its sub- 
mission to the states by the Congress. Article 5 clearly 
confers on Congress the choice of two methods of ratifica- 
tion, one by the legislatures, the other by constitutional 
conventions. Spr ague's attorneys argued before Judge 
Clark that Article 5 of the Constitution impliedly required 
that proposed amendments conferring on the United States 
new direct powers over individuals, should be ratified in 
conventions. The theory advanced was, that the legisla- 
tures were incompetent to surrender personal liberties of 
the people to the Federal Government ; that the legislatures 
were usually occupied and busy with other matters and 
would not give due thought and deliberation to the proposed 
amendments; that a constitutional convention elected to 
determine one question only would be composed of a better 
class of representatives, and more likely to give mature and 
uninfluenced thought to the matter under discussion, and 
not be under the many handicaps and influences that mem- 
bers of the legislature were likely to be. But over and above 
this theory the argument was made that the Tenth Amend- 
ment is decisive of the question because that Amendment 


reserved to the people power over their own personal lib- 
erty and actions, and the legislature cannot consent that 
such powers so reserved to the people be destroyed. Judge 
Clark refused to follow the reasoning of the attorneys along 
these lines, but attempted by a "scientific approach to the 
problem of government" to decide the question as one of 
"political science' ' and called to his assistance "political 
thought" of modern times. In his opinion he gives but 
scant consideration or weight to decided cases, but many 
writers on political science are referred to and quoted at 
great length ; parts of speeches of senators and other states- 
men and a message of President Andrew Johnson are in- 
corporated in the opinion. 

Judge Clark refers to and quotes from many others be- 
ginning with Confucius and ending with Claude Bowers 
and including Cicero, Lincoln, Abbott, Lowell, Taft, Bryce, 
James Monroe, and Benjamin Franklin. 

The whole theory that the Eighteenth Amendment was 
improperly ratified goes back to the old idea often ad- 
vanced that the framers of the constitution must have in- 
tended and did intend that the personal rights and liberty 
of the people should not be surrendered, or abrogated by 
action of the state legislatures. 

In order that it may be seen how contrary to the decision 
of the Supreme Court of the United States in the National 
Prohibition case, was that of Judge Clark in the Sprague 
case, and to realize how truly the Sprague decision was 
merely a "tempest in a teapot' ' it is necessary to review 
briefly the facts surrounding and the arguments presented, 
and the decision of the court in the National Prohibition 
cases reported under the style of Rhode Island vs. Palmer, 
Attorney General, in 253 United States, 350; 64 Law Edi- 
tion, 946. 

These cases reached the Supreme Court by means of two 
original bills of equity brought by the States of Rhode 
Island and New Jersey, seeking to enjoin the execution of 
the Volstead Act ; by four appeals from the various District 
Courts refusing to enjoin the enforcement of said Act ; and 
by an appeal from the District Court for the Eastern Dis- 
trict of Wisconsin enjoining the enforcement of the Act. 
The cases were decided June 7th, 1920, and the majority 
opinion written by Justice Van Devanter. There was a 
large number of distinguished lawyers who filed briefs in 
the cases, as amici curiae. Mr. Elihu Root filed a brief, 
together with numerous others as amici curiae and his 


argument in so far as the questions under consideration 
are involved may be summarized as follows : 

1. The ordinary and natural meaning of the terms used 
in Article 5, as well as the purpose to be accomplished, limit 
the authority granted by the Article to changes in the 
system of government, that is changes in the distribution 
and regulation of governmental powers. 

2. That the power to amend does not include the power 
of independent legislation, and the word "amend" does not 
include an addition, or supplement, but must have some 
relation to the particular thing which is to be amended. 

3. The Eighteenth Amendment directly deprived the 
several states of a substantial portion of their respective 
police powers and that being so, another amendment might 
sweep away every remaining vestige of the police powers of 
the state. 

4. The Constitution depends for its true construction 
upon plain implications to be derived from its nature and 
terms, the historical circumstances surrounding its origin, 
and above all the fundamental purposes of its creation. 

5. The Tenth Amendment reserves the right to a state 
to have whatever means or instrumentalities of local gov- 
ernment it deems fit. 

6. The word "legislature" used in Article 5 of the 
Constitution was employed in its broadest sense to denote 
the legislative instrumentality by which the legislative 
powers of a state might be expressed in the several states 
at any time during the future life of the nation. But how 
that department should be constituted, how it should act, 
when it should act, are all matters referred by the constitu- 
tion to the states to settle according to their pleasure. 

Messrs. Alexander Lincoln and Micheal J. Lynch filed 
a brief as amici curiae, and contended that (1) the Eight- 
eenth Amendment is invalid because it was not ratified by 
the people or by constitutional conventions in the several 
states; (2) The states reserved to themselves the police 
power or power of local self government; and that power 
was intended by the framers of the constitution to be 
reserved to the states. 

Numerous lawyers filed briefs but the arguments shown 
by the above cover the main points. 

In deciding the case Judge Van DeVanter did not at- 
tempt to give his reasons for the conclusions announced by 
him, but only stated the ultimate conclusions of the court. 
Briefly he held as follows : 

1. The prohibition of the manufacture, sale, etc., of in- 


toxicating liquors for beverage purposes, is within the 
power to amend, reserved by Article 5 of the Constitution. 

2. The Eighteenth Amendment by lawful proposal and 
ratification has become a part of the Constitution. 

The question of which so much was made in the Sprague 
case, especially by the press and in the public mind, were 
presented in the argument of Messrs. Lincoln and Lynch in 
the National Prohibition Cases and were necessarily fore- 
closed by the conclusion of the court in that case that the 
Eighteenth Amendment by lawful proposal and ratification 
has become a part of the Constitution. 

The Sprague case was decided by the Supreme Court of 
the United States February 24th, 1931 in an unanimous opin- 
ion announced by Mr. Justice Roberts, the youngest member 
of the court. From the opinion of Mr. Justice Roberts it 
will be observed curiously enough, that Judge Clark did not 
follow the argument advanced by Sprague 's lawyers, but 
reached his conclusion, as stated before, by resorting to 
political science, and when the case was before the Supreme 
Court of the United States, Sprague 's attorneys did not 
attempt to justify the reasons advanced by Judge Clark in 
his decision, but again urged upon the Supreme Court of the 
United States their original argument. So cold was the 
reception of Judge Clark's opinion by the Supreme Court 
that it said a mere reading of Article 5 demonstrated that 
it contained no ambiguity and calls for no resort to rules of 
construction. Mr. Justice Roberts pithily says in the opin- 
ion that the constitution was written to be understood by 
the voters. Inferentially he may have meant that it was not 
written to be understood nor expected to be clear to the 
trained in legal sophistry. 

The opinion points out that the Supreme Court of the 
United States has repeatedly and consistently declared that 
the choice of mode of ratification rests solely in the discre- 
tion of Congress, that all amendments have been ratified by 
action of the legislatures and that the Thirteenth, Four- 
teenth, Fifteenth, Sixteenth, and Nineteenth amendments 
touch the rights of citizens. Thus the court has set at rest 
what might have been a great storm. It would be interest- 
ing to speculate on the effect of a decision upholding Judge 
Clark's opinion in the Sprague case. If the Eighteenth 
Amendment was not validly adopted, neither was the Thir- 
teenth. If the Thirteenth was not validly adopted, slavery 
is still lawful. True, there might be some difficulty in secur- 
ing the assistance of our wet brethren, or dry ones either, 
in certains parts of the country in reestablishing and put- 


ting into practical effect the institution abolished by the 
Thirteenth Amendment, but still it would be legally and con- 
stitutionally in effect. 

Then without the Fourteenth Amendment with its as- 
surances of privileges, immunities, due process of law and 
equal protection of the law, what would become of our great 
business institutions operating in different states? 

Verily the decision would have opened a "Pandora Box" 
of evil that would have made it necessary that there be a 
free and unlimited manufacture, sale and distribution of 
intoxicants as well as universal consumption thereof to make 
life tolerable in this country. 


By D. M. Russell* 

In the November, 1930, issue of the Mississippi Law 
Journal Dr. A. B. Butts made a most valuable contribution 
to the bench and bar in his illuminating discussion of "The 
Court System of Mississippi." 1 He reviewed the history of 
the development of our judicial system through successive 
constitutional changes, and stated with clarity and conci- 
sion the distribution of jurisdiction made among our courts 
by the Constitution of 1890. 

In view, however, of the ever-recurring controversy as to 
the proper exercise of jurisdiction by our trial courts, I have 
wondered whether it would appear presumptious on my part 
at this time to undertake some extension of Dr. Butts ' pres- 
entation insofar as it refers to section 147 of that Constitu- 

By way of further apology for presuming to ask the bar 
and bench to indulge me to pursue this particular jurisdic- 
tional question farther, I may suggest that, in my judgment, 
the maintenance of our admirably adjusted jurisdictional 
boundaries as surveyed and established in 1890 is a matter 
of increasing concern to all of our people. I am willing to 
confess that my apparent solicitude may arise largely out 
of my experience as an unworthy member of the bench. But 
I think every member of the bench and bar will agree that 
there is rather convincing evidence furnished from time to 
time in court procedure, some of which is reflected in re- 
ported cases, that there is manifested some degree of in- 
difference toward maintaining inviolate the integrity of our 
constitutional apportionment of the jurisdiction of causes. I 
venture to add that it will be agreed, furthermore, that this 
laxity arises for the most part out of an over use — or, to be 
more accurate, an abuse of the salutary saving clause, so to 
speak, expressed in said section 147, appearing in our State 
Constitution for the first time in 1890. 

Fully informed as to the judicial systems provided for, 
and operated within, our commonwealth under the three pre- 
ceding Constitutions, the eminent authors of our last and 
greatest Constitution were able to formulate a judicial 

* Member of the Gulf port, Mississippi, Bar ; Chancellor of the Tenth 
District of Mississippi, 1914 to ]922; Professor of Law, University of Missis- 
sippi Law School; present Chancellor of Eighth District of Mississippi. 

i Mississippi Law Journal, Volume III, p. 97. 


scheme second to none anywhere, both in its definiteness 
in the distribution of jurisdiction, and in its flexibility as a 
safeguard against unreasonable rigidity in procedural ob- 

Manifestly our Constitution makers realized that their 
most difficult undertaking with respect to the judiciary was 
the proper division of the judicial domain among the con- 
stituted tribunals ; particularly the establishment and clear- 
ly marking of the boundary line between the jurisdiction 
assigned to the circuit court and that assigned to the chan- 
cery court. Under the three preceding Constitutions sep- 
arate courts of law and equity had been provided for with 
varying jurisdictional limitations. During brief periods the 
.so-called blended system of law and equity was administered 
by the same tribunals, and such a system had some support 
in the constitutional convention of 1890. The contest be- 
tween the adherents of the blended system and the dual 
system is referred to in Moore vs. General Motors, 125 So. 
411, where our Court, speaking through Justice Griffith, 
makes this observation: 

"Supported by several able members, there was a strong 
minority sentiment in the Constitutional Convention in favor of 
the combining of the jurisdiction in law and equity into one court ; 
and the most potent argument in favor of that proposal was the 
evil that often, after arduous and expensive litigation, a judgment 
or decree correct on the merits would be reversed solely on the 
point that the case had been instituted and prosecuted in the 
wrong court. The proposal mentioned had, however, no con- 
siderable support for the further proposition that the right of 
trial by jury should be extended to all cases, including those that 
were equity; and, strange to say, the argument mentioned over- 
looked its own weakness, in that the conferring of the combined 
jurisdiction on one court would not avoid the evil mentioned, for 
the question sought to be avoided would immediately rise again, 
as it has arisen in the case at bar, on the matter of the right to 
a trial by jury. But the Convention was well determined to 
preserve our separate court of chancery, and to meet the argu- 
ment aforesaid and to cure the evil which was the chief basis of 
that argument, section 147 was devised and inserted in the Con- 
stitution. ' ' 

In his masterful work, " Mississippi Constitutions, ' ' Jus- 
tice Ethridge makes this comment on section 147 : 

"This section was intended to serve a very wholesome purpose. 
Prior to 1890 it frequently happened that a litigant got into the 
wrong court, and, regardless of whether the case was tried cor- 
rectly, and the correct result reached, the judgment must be 


reversed, and the case dismissed, making it necessary for the 
litigant to start anew, incurring all the costs and delay occasioned 
by such mistake. Sometimes the delay defeated the action, be- 
cause the filing of suit in a court which had no jurisdiction did 
not stop the running of the statute of limitations. This section 
was placed in the constitution to relieve the litigant from a mis- 
take of judgment by the courts as to which court the case should 
be tried in." 

This was a contingency not provided for in preceding 
Constitutions. The result was that it frequently happened 
that after a long and expensive trial in the wrong court the 
Supreme Court on appeal would reverse and dismiss the 
case — all because the trial court, either mistakenly or ar- 
bitrarily, assumed jurisdiction denied it by the Constitution. 

But this beneficent protection provided by section 147 
was never designed to encourage or justify trial judges in 
flagrantly or indifferently disregarding constitutional pro- 
visions which definitely defined the jurisdiction of both cir- 
cuit court and chancery court. It is hardly conceivable that 
the authors of section 147 ever contemplated that resort to 
the extraordinary relief which it provided would be neces- 
sary, or made, except in cases where, after the most earnest 
and thorough consideration of the jurisdictional question 
involved in a case, the trial judge might honestly entertain 
doubt as to the jurisdiction of his court to proceed, and 
which doubt such judge would erroneously resolve in favor 
of his jurisdiction. In other words, it was contemplated 
that only those causes which are in the twilight zone, and 
not clearly within the horizon of either circuit court or 
chancery court jurisdiction should make it necessary for the 
trial court to resort to section 147. 

No circuit judge or chancellor is entitled to claim protec- 
tion for the integrity of his judgment or decree under said 
section, unless and until he has done all within his power 
to make resort to the same unnecessary, by jealously guard- 
ing the door of his own court against jurisdictional invasion ; 
and by transferring the invading causes to that tribunal 
to which the Constitution assigns them. If all the judges 
and chancellors who have presided over our trial courts 
during the last 40 years had deliberately and courageously 
maintained the jurisdictional boundaries marked out, repel- 
ling all invasions from either side, our jurisdictional fences 
would be in a better state of repair, and there would not be 
nearly so many annotations to section 147. 

Beginning with the Cazeneuve case, 70 Miss. 521, our 
Supreme Court has consistently construed this section as 


putting beyond its power the right of revision or reversal 
of any civil case where no error is assigned, or assignable, 
save the error of the trial court in assuming jurisdiction. 
As said in these cases, section 147 makes it possible for the 
circuit judges and chancellors to utterly strike down the 
line of demarcation which the Constitution has, by other 
related sections, definitely fixed between the jurisdiction of 
circuit courts and chancery courts ; even including the denial 
to a litigant his constitutional right of a trial by a jury. 
In the recent case of Talbott and Rig gins Lumber Company 
vs. McLeod Lumber Company, 113 So. 433, we are furnished 
a most interesting exposition of the operation of section 
147, particularly interesting is the elaborate dissenting 
opinion of Justice Ethridge. 

It thus appears that section 147 has left the Supreme 
Court impotent to protect the people in their constitutional 
rights to have their civil causes tried in courts upon which 
the Constitution has conferred jurisdiction, where the trial 
court has wrongfully assumed jurisdiction. But the Supreme 
Court has repeatedly expressed its disapproval of the action 
of trial courts in presuming to try causes belonging to the 
jurisdiction of another court. In Wood Preserving Company 
vs. Meyer, 76 Miss. 586, the Supreme Court admonished the 
chancery court that it should decline jurisdiction of an action 
at law. Many other similar admonitions appear in the Ee- 
ports, either in express terms or inferentially. 

In his valuable work, "Mississippi Chancery Practice,' ' 
Judge Griffith, in commenting on section 147 and the related 
sections requiring judges and chancellors to transfer causes 
not within their respective jurisdictions, gives this analysis 
and admonition: 

''But the constitution most emphatically had no such purpose 
as that the lines of distinction between law and equity should be 
broken down, obliterated or even confused. It merely devolved 
the obligation in the main upon the trial judges, rather than upon 
appellate judges, to see that this be not done; for, by associated 
sections it enjoined upon the circuit judges that 'all causes that 
may be brought in the circuit court whereof the chancery court 
has exclusive jurisdiction shall be transferred to the chancery 
court,' and upon the chancellors that 'all causes that may be 
brought in the chancery court whereof the circuit court has ex- 
clusive jurisdiction shall be transferred to the circuit court.' " 

Under the heading ' 6 The duty of the trial judge to trans- 
fer,' ' Judge Griffith has this to say in his section 515: 

"Thus the means are freely provided for the transfer from one 
court to another, and it is repeated that the constitution enjoins 


it upon the circuit judges and chancellors that they shall observe 
and thereby preserve the established jurisdictional lines, for they 
are nicely and wisely balanced in our state. The judges must not 
intrude upon them and must make the transfer from one court to 
the other when it is reasonably clear that a case has been brought 
in one whereof the other more properly has the jurisdiction, and 
moreover it is distinctly settled that the judge or chancellor not 
only may, but should, do this on his own motion. Often, it is true, 
parties come now into chancery with causes that are in strict view 
the subjects of law cognizance only and the parties preferring 
what may appear to them to be the more exact and dependable 
methods of the chancery forum make no point upon the jurisdic- 
tion in equity, and the chancellor not wishing to appear to shirk 
either responsibility or labor will sometimes hear such cases, but 
when he does so, it is inescapable that he does it in forgetfulness 
of his constitutional obligation and of his high duty to preserve 
unobscured the well-established lines between law and equity, and 
out of which we have so long and so greatly profited in clarity 
of principle and in preciseness of decision in the administration 
of justice in our state." 

(it, therefore, conclusively appears that the judges and 
chancellors are the duly constituted guardians of our Con- 
stitutional dual court system.) They are definitely commit- 
ted to its maintenance unimpaired. In fact, it may be said, 
generally, that the courts are the real, responsible custo- 
dians of the Constitution — all of it. They are its exponents, 
its defenders. Shall it be assaulted or maimed in the house 
of its friends — its guardians? 

When the question of jurisdiction of a cause arises the 
court cannot be unmindful of the fact that the Constitutional 
objective inspiring the distribution of jurisdiction of causes 
among our trial courts was the conservation of the sub- 
stantial rights of litigants. It is never a sufficient apology 
for wrongfully assuming jurisdiction to say, " substantial 
justice has been done." That usually means, in judicial 
parlance, that the result reached in a particular case was 
such as might reasonably be expected to follow a proceeding 
of the character involved in accordance with the procedure 
prescribed for the court that tried the case. The only Con- 
stitutional guaranty that equal justice should be meted to 
the rich and poor — all — alike must mean that justice which 
is ascertained in accordance with an orderly procedure pro- 
vided for all alike. 

It is no compliment to the intelligence or fidelity of any 
judge, when an attorney advances as his sole argument in 
opposition to a motion to transfer a civil cause to the ap- 
propriate tribunal, that the court is authorized by section 


147 of the Constitution to take jurisdiction and that if it 
does, its judgment will be conclusive so far as jurisdiction 
is concerned. For let it be repeated that section 147 con- 
fers no jurisdiction on any trial court. Its sole purpose is 
to deprive the Supreme Court of the power to disturb the 
judgment of the trial court in a case where such court has 
wrongfully assumed jurisdiction and there was no other 

It necessarily follows that the trial court is enjoined to 
examine for itself the question of its jurisdiction under the 
Constitution to proceed in each cause presented ; and if not 
satisfied that jurisdiction is conferred by the governing 
Constitutional sections, then transfer the cause to the proper 
tribunal; being careful to (assume jurisdiction of doubtful 
cases, under the protection of section 147, only when thor- 
ough investigation has pursued them to the twilight zone of 
"No Man's Land.") 



By Kenneth P. Vinsel* 

It is generally recognized that in the organization of a 
government every grant of power should be balanced by a 
corresponding responsibility. Rights and privileges are 
generally linked up with obligations and duties. The link- 
ing up of the rights and privileges of a municipal corpora- 
tion to obligations and duties presents a somewhat complex 

A national or state government is not amenable to suit 
by an ordinary citizen save only in so far as it has volun- 
tarily agreed to submit to the jurisdiction of the courts. It 
often does this by means of statutes authorizing suits to be 
brought against it. The municipality is in no such position 
of immunity. Municipal corporations are usually subject 
to suit at any time by any aggrieved person. They can be 
compelled to appear in the courts to defend themselves and 
judgments may be entered against them. Not only is the 
municipal government responsible to the voters but the cor- 
poration may be cited before the ordinary courts with or 
without the consent of its governing authorities and be 
made a defendant in suits at law. 1 

Goodnow says, " While under the original constitutions 
the legislature would seem to have almost unlimited power 
over municipal corporations, on the ground that they are 
governmental bodies, in other branches of the law relative 
to municipal corporations we find a distinct acknowledg- 
ment of their private character resulting from the fact of 
their incorporation. It is now distinctly recognized that 
they may have private, legal liabilities, although as organs 
of government they are usually subjects of the public rather 
than of the private law. ' ,2 

The city is liable to be sued in actions of contract or for 
the torts of its agents, or in causes arising out of its pos- 
session of property. It is not liable, however, for every 

* Former Acting Dean of the University of Mississippi School of Com- 
merce; Former Professor of Political Science, University of Mississippi; Pro- 
fessor of Political Science, State University of Iowa. 

lMunro's The Government of American Cities (Fourth Edition), p. 120; 
Anderson's American City Government, pp. 124-125. 

2 Goodnow '8 Municipal Home Bule, pp. 105-106. 


misdeed or negligence, nor is its liability complete in all 
three classes of actions. 

A suit that can be successfully prosecuted against an 
individual can be prosecuted against a municipal corpora- 
tion in respect to the matter of contracts. In an action for 
breach of contract, the city can urge only the same pleas 
and defenses that are open to the individual defendant. It 
has no immunities on a breach of contract by reason of its 
being a public corporation. 

In the matter of liability for torts, it must be kept in 
mind that the municipal corporation exercises both corpor- 
ate and governmental powers. As a general rule there is 
no liability for negligence in the exercise of governmental 
powers. The liability depends upon the nature of the power 
exercised. 3 

In the general code charter for municipalities in Mis- 
sissippi the first power given to cities, towns and villages 
is * * to sue and be sued. ' ,4 


A municipal corporation is usually held to have an im- 
plied power to make contracts that are reasonably neces- 
sary for the purpose of carrying out the objects of its ex- 
istence. In Mississippi this power is expressly given. The 
statute authorizes all municipalities to make all contracts 
"in relation to the property and concerns of the municipal- 
ity or administrative powers." 5 A municipal corporation 
is liable upon a contract which is within the scope of its 
chartered powers and has been duly made by the proper 
officials. In the matter of contracts, the municipality is 
subject to substantially the same rules as are applied to 
individuals or to private corporations. 6 

Judge Dillon points out some distinction between the 
acts of an officer or agent of a public corporation and those 
of an agent of a private corporation in respect to the lia- 
bility on contracts. "Public officers or agents are held more 
strictly within their prescribed powers than are private 
general agents ; and a contract made by a public agent with- 
in the apparent scope of his power does not, if there be no 
estoppel, bind his principle in the absence of actual au- 

3Munro's The Government of American Cities (Fourth Edition), pp. 120, 
121; Elliott's The Principles of the Law of Municipal Corporations (Third 
Edition), Sec. 239. 

4 Code of 1930, Sec. 2391, par. 1. 

5 Code of 1930, Sec. 2391, par. 5. 

6 Elliott's The Principles of the Law of Municipal Corporations (Third 
Edition), See. 246; Goodnow's Municipal Home Rule, p. 106. 


thority. ... In cases of public agents, the public corporation 
is not bound unless it manifestly appears that the agent is 
acting within the scope of his real and lawful authority or is 
held out by the authorized and proper officials or body of 
the municipality as having authority to do the act, or is 
employed in his capacity as a public agent to make the 
declaration or representation for the government." 7 


Contracts made by a municipal corporation may be sub- 
ject to the control of the legislature but the legislature, 
in exercising its control, must act within its constitutional 
limitations. 8 The statutes which grant powers to contract 
often contain limitations. Thus, a contract may require the 
approval of a majority of the electorate or a contract may 
be limited as to its duration. 9 Contracts outside the scope 
of the city's powers or those in violation of the law are 
void. 10 Citizens should not assume that municipal officers 
are in all cases acting within the line of their duty, but 
should make it their business to ascertain the exact nature 
and extent of municipal authority. 11 A municipality cannot 
surrender its governmental or legislative functions nor can 
it make contracts which will embarrass or control these func- 
tions. Neither may it contract away its contract powers. 12 

The contract power, in Mississippi municipalities, is ex- 
ercised by the mayor and board of aldermen or the coun- 
cil. 13 A single officer of the municipality cannot contract 
for the municipality unless he is specially authorized to do 
so by law or by an order of the governing board. The 
mayor has no power to bind the corporation by written or 
oral contract or representation unless authorized to do so. 14 

When made by the rightful authorities, contracts may be 
binding upon a municipality for a reasonable number of 
years. Even where the express power was to make a con- 
tract year by year, the Mississippi court has held it reason- 
able and valid that a contract for water supply might extend 

7 Dillon's Commentaries on the Law of Municipal Corporations (Fifth 
Edition), Vol. 2, Sec. 775. 

8 State Board of Education v. Aberdeen, 56 Miss. 518. 

9 Code of 1930, Sees. 2401, 2415; Heidleberg v. Batson, 119 Miss. 510. 

10 Hirsch v. Vicksburg, 141 Miss. 827. 

ii Edwards Hotel v. Jackson, 96 Miss. 547. 

12 Edwards Hotel v. Jackson, 96 Miss. 547; Jackson v. Bowman, 39 Miss. 

13 Code of 1980, Sees. 2392, 2639. 

14 Kidder v. McClanahan, 126 Miss. 179. 


for twenty years and that a contract for lighting the streets 
might extend for ten years. 15 

The constitution and the statutes declare that municipal 
contract in which officers or employees of the municipality 
have a personal, pecuniary interest are void. 16 The pro- 
vision has been strictly construed by the courts. 17 In making 
contracts, the requirements of the statutes must be strictly 
observed by the contract making authorities. 18 


Acts of a municipal corporation which are beyond the 
authority given to it by the state are said to be ultra vires. 
An ultra vires contract is one which is not within the power 
of a municipal corporation to make under any circum- 
stance. 19 A distinction may be made between an ultra vires 
contract and an illegal contract. A contract may be ultra 
vires and yet not illegal. There can be no recovery upon a 
contract which is illegal in the sense of being absolutely 
prohibited by law. 20 

If a contract is-ultra vires it is invalid and generally no 
recovery can be had if the municipality is sued on the con- 
tract. A municipality may sue to recover damages on an 
ultra vires contract providing it has been executed by the 
municipality and the other party has received benefits from 
the contract. 21 The invalidity of contracts because of ultra 
vires is more strictly maintained in favor of municipal than 
in favor of private corporations. 

McQuillin says that if a municipality is sued on an ultra 
vires contract, "(1) no recovery can be had; (2) there can 
be no ratification except by the legislature; (3) the munici- 
pality cannot be estopped to deny the validity of the con- 
tract; and (4) there can be no recovery on an implied con- 
tract, although it has been executed and the municipality 
has received the benefit of the contract. ' ,22 

A municipal corporation may ratify an intra vires con- 
tract, or one within the authority of the municipal corpora- 
tion, when it is invalid and voidable because it was made by 

15 Beid v. Trowbridge, 78 Miss. 542; Light Co. v. Jackson, 73 Miss. 598. 

16 Constitution of 1890, Sec. 109; Code of 1930, Sec. 2616. 

17 Noxubee County Hardware Co. v. Macon, 90 Miss. 636. 

18 Leflore Co. v. Cannon, 81 Miss. 334; Beid v. Trowbridge, 78 Miss. 542; 
M. E. Church, South v. Vicksburg, 50 Miss. 601. 

19 McQuillin 's A Treatise on the Law of Municipal Corporations, Vol. 
3, Sec. 1172; Noxubee Hardware Co. v. Macon, 90 Miss. 636. 

20 Perkins v. State, 130 Miss. 512. 

21 Perkins v. State, 130 Miss. 512. 

22 McQuillin 's A Treatise on the Law of Municipal Corporations, Vol. 
3, Sec. 1172. 


an officer or committee not duly appointed or empowered 
to act, but it has no power to ratify an ultra vires contract. 24 

Municipal contracts in which officers or employees of 
the city have a personal pecuniary interest are void in 
Mississippi. 25 A contract by a city exempting a private 
corporation from paving its rightful share of a street has 
been held ultra vires. No municipality may contract away 
its legislative or administrative powers. 26 

Any other doctrine would be dangerous and would tend 
to subject the municipalities to abuse and ruin. As Dillon 
said, ' ' The inhabitants are the corporators ; the officers are 
but the public agents of the corporation. The duties and 
powers of the officers or public agents of the corporation 
are prescribed by statute or charter, which all persons not 
only may know, but are bound to know. ' ' 27 

In general, a municipality is not estopped from denying 
the validity of a contract made by its officers which is ultra 
vires. The rule has been felt to be harsh and modifications 
have often been made. 28 The Mississippi court has held, for 
example, that if a municipality gets money or other-property 
pursuant to an ultra vires contract, it cannot plead ultra 
vires and still hold the property. 29 The general rule for 
estoppel is illustrated in a case where a municipality had 
selected a depository for public funds. The selection of the 
depository was made according to statute except the depos- 
itory bond accepted by it was made by individuals as sureties 
rather than by a surety company as required by statute. 
The court held that the municipality was not estopped by 
the act of its officers in accepting such bond and the princi- 
pal and sureties of the bond could not escape liability on 
that ground, provided the bank selected as the depository 
received the benefit of such bond by acting as the actual 
depository for the municipality. 30 

An entire contract is not necessarily invalid because a 
part of it is ultra vires. Irregularities in the exercise of 
power cannot be held as a defense against one who has in 

23 Constitution of 1890, Sec. 96; Clark vs. Miller, 142 Miss. 123. 

24 Jackson Electric Co. v. Adams, 79 Miss. 408. 

25 Constitution of 1890, Sec. 109; Code of 1930, Sec. 109; Noxubee Hard- 
ware Co. v. Macon, 90 Mass. 636. 

26 Edwards Hotel v. Jackson, 96 Miss. 547. 

27 Dillon's Commentaries on the Law of Municipal Corporations (Fifth 
Edition), Vol. 2, Sec. 791; Edwards Hotel Co. v. Jackson, 96 Miss. 547. 

28 Elliott's The Principles of the Law of Municipal Corporations, See. 289; 
Hitchcock v. Galveston, 96 U. S. 351. 

29 Jackson Electric Co. v. Adams, 79 Miss. 408. 

30 Perkins v. State, 130 Miss. 512. 


good faith parted with value for the benefit of the munici- 
pality. 31 


A municipal corporation, like a private corporation, may 
become liable on an implied contract within the scope of its 
corporate powers. 32 One of the most widely quoted state- 
ments on the subject of the doctrine of implied municipal 
liability is that of Chief Justice Stephen J. Field who held 
the doctrine ". . . applies to cases where money or other 
property of a party is received under such circumstances 
that the general law, independent of express contract, im- 
poses the obligation upon the city to do justice with respect 
to the, same. If the city obtain money of another by mistake 
or without authority of law, it is her duty to refund it. . . . 
from the general obligation to do justice which binds all 
persons, whether natural or artificial . . . The law, which 
always intends justice, implies a promise. ... As a general 
rule, a municipal corporation is only liable upon express 
contracts authorized by ordinance. The exceptions relate 
to liabilities from the use of money or other property which 
does not belong to her or to liabilities springing from duties 
imposed by the charter, from which injuries to parties are 
produced. ' ,33 

A void contract by a Mississippi municipality for the 
acquisition of land to be used for a street was held by the 
court not to create an implied contract to pay for the use of 
the street. A contract was, not implied from the benefits 
received under a contract which was ultra vires. 3 * 


The general rules governing the construction and opera- 
tion of municipal contracts are the same as those governing 
contracts of private corporations or individuals. The 
municipality is only viewed as a body politic with respect 
to governmental powers granted by the state. Contracts 
entered into by the municipality in the exercise of its pro- 
prietary powers are construed as contracts between in- 
dividuals. A somewhat different construction applies to 
contracts made by a municipality in matters affecting the 

31 Hitchcock v. Galveston, 96 U. S. 351; Green v. Bienzi, 87 Miss. 463; 
Pontotoc v. Fulton, 79 Miss. 511. 

32 Drainage District v. Sillers, 129 Miss. 13. 

33 Dillon 's Commentaries on the Law of Municipal Corporations (Fifth 
Edition), Vol. 2, Sees. 793-795. 

34 Edwards House Co. v. Jackson, 138 Miss. 644. 


public interest. Public contracts will be liberally construed 
in favor of the public. 35 

A municipality must perform its valid contracts the same 
as an individual or private corporation, and even the legis- 
lature of the state has no power to authorize it to violate 
its contracts. A municipality is as much bound by its en- 
gagements as a private citizen. Municipal contracts may 
not be rescinded unless that right has been reserved. 36 

Contracts outside the scope of the municipal corpora- 
tion's powers or those made in violation of the law are void 
and the municipality may not only be judicially restrained 
from entering into them but may be restrained from per- 
forming them if they are entered into. 3t Defective per- 
formance of a contract for public improvement has been 
held by the courts not to be a bar to special assessment in 
the absence of fraud. 38 

An occasional and immaterial breach which does not go 
to the substance of a contract will not act to rescind the 
contract. The city of Jackson brought suit for damages 
against a water company for a failure to supply water in 
certain quantities and at a specified force. The water com- 
pany sought to rescind the contract because the city had not 
accepted the mains according to the exact terms of the con- 
tract. The breach was held by the court to be immaterial 
and not grounds for rescinding. 39 . The general law in re- 
spect to breach and rescission of contracts applies to muni- 
cipal contracts. 


Private corporations are bound by the doctrine of 
respondeat superior. This is the doctrine that the employer 
is responsible for practically every act of his employee. 
As given by Dillon, the rule of law is that i * . . . the superior 
or employer must answer civilly for the negligence or want 
of skill of his agent or servant in the course or line of his 
employment, by~ which another who is free from contrib- 
utory fault is injured." 40 The municipal corporation is 
liable under this doctrine in the execution of its corporate 
powers and when its acts are within the scope of its powers. 

35 McQuillin 's Treatise on the Law of Municipal Corporations, Vol. 3, 
Sec. 1268. 

36 McQuillin 's Treatise on the Law of Municipal Corporations, Vol. 3, 
Sees. 1269-1271. 

37 Eirsch v. Vicksburg, 141 Miss. 827. 

38 Jackson v. Buckley, 123 Miss. 56. 

39 Light Co. v. Jackson, 73 Miss. 598. 

40 Dillon's Commentaries on the Law of Municipal Corporations (Fifth 
Edition), Vol. 4, Sec. 1647. 


Following the idea that the state can do no wrong the doc- 
trine is held not to apply to municipal corporations in the 
exercise of their governmental powers. 

Acts which are wholly outside the power of municipali- 
ties result in no liability to the municipality. These ultra 
vires acts are of two kinds: (1) acts beyond the powers 
delegated to the corporations and (2) acts by a municipal 
officer which the corporation had the power to do but which 
the officer had no authority to do. 41 "It is accordingly well 
settled that when a municipal corporation undertakes a 
function not delegated to it by the legislature, it is not liable 
for negligence or misconduct in the performance of that 
function. . . . The principle, however, goes one step further 
and declares that if, in attempting to carry out one of its 
authorized functions, a municipal corporation exceeds its 
statutory authority, the corporation is not liable for any 
injuries that may result." 42 Small defects in the carrying 
out of the functions would not excuse the corporation. 
Opinion varies as to what are ultra vires acts and what are 

Since the doctrine of respondeat superior applies to muni- 
cipal corporations in the exercise of corporate functions and 
not in the exercise of governmental functions, the distinc- 
tion must be drawn between the two classes of functions. 
This is a difficult task. Certain functions are clearly cor- 
porate, others are clearly governmental. Many functions 
in what is known as the twilight zone are held governmental 
in one state and corporate in another in respect to liability. 43 

The general rule of distinction in Mississippi has been 
expressed by the court as follows: "What are govern- 
mental powers and duties and what are corporate duties, 
is not subject to precise definition further than to say this : 
The powers and duties of municipal corporations are of 
twofold character; the one public as regards the state at 
large, insofar as they are its agent in government; the other 
private insofar as they provide the local necessities and 
conveniences for their citizens. A municipal corporation 
possesses two kinds of powers ; one governmental and pub- 
lic, and to the extent they are held and exercised is clothed 
with sovereignty; the other private, and to the extent they 
are held and exercised is a legal individual. The former 

41 Warren v. Booneville, 151 Miss. 457. 

42 Ruling Case Law, Vol. 19, pp. 1137, 1138. See also Chandler v. Bay 
St. Lewis, 57 Miss. 326. 

43Munro's Government of American Cities (Fourth Edition), p. 126; 
Anderson's American City Government, p. 126; Byrnes v. Jackson, 140 Miss. 
656; Bradley v. Jackson, 153 Miss. 136. 


are given and used for public purposes ; the latter for pri- 
vate purposes." 44 

A function undertaken by a municipality for the profit, 
benefit or advantage of the corporation or of the people who 
make up the corporation rather than for the public at large 
is considered as a private or corporate function. 45 Some 
courts have attempted to decide the question of an enter- 
prise being corporate or not by determining if it is a profit- 
making enterprise. 

A municipal corporation is not held liable for the failure 
to exercise its discretionary functions. This class of powers 
includes nearly all matters of improvement. The munici- 
pality may undertake a discretionary power or ignore it 
It is a matter of legislative discretion and not subject to 
judicial supervision. After a contract for improvements 
has been made, the discretion is subject to the terms of the 
contract. After the improvement or work is completed, its 
proper maintenance and repair is imperative. 46 

Imperative or mandatory functions are those imposed 
upon the municipality. This leaves no option to the muni- 
cipal corporation as to whether or not it may refuse the 
function. It must perform the duty under penalty of legal 
consequences. Usually "shall" or "must" are used to 
signify a mandatory duty but when the public is specially 
interested in the performance of an act the words ' ' hereby 
authorized" or "may" have been construed to create a 
mandatory duty. The proper care of streets and alleys is 
held to be an imperative function. 47 The same is true with 
sewers and public utilities after they are established even 
though their original construction was purely discretion- 
ary. 48 


In the establishment and regulation of schools, hospitals, 
poorhouses, fire departments, police departments, jails, 
workhouses and police stations, Mississippi municipalities 
are clearly acting in their governmental capacity. 49 

44 Eattiesburg v. Geigor, 118 Miss. 676, 685. 

45 Yazoo City v. BircJiett, 89 Miss. 700; Semple v. Vicksburg, 62 Miss. 
63; Ruling Case Law, Vol. 19, p. 1109. 

46 Bradley v. Jackson, 153 Miss. 136. See dissenting opinion in same 
case, p. 167, quoting 28 Cyc., pp. 267-9. 

47 Atkinson v. Decatur, 131 Miss. 707; McComb v. Eayman, 124 Miss. 
525; Higginbottom v. Burnsville, 113 Miss. 219; Meridian v. Crook, 109 Miss. 
700; Vicksburg v. Hennessy, 54 Miss. 391. 

48 Greenwood v. Pentecost, 148 Miss. 60; Williams v. Canton, 138 Miss. 
661; Woods v. Indianola, 114 Miss. 772; Laurel Light Co. v. Janes, 102 So. 1. 

49 Bradley v. Jackson, 153 Miss. 136. 


The state owes the duty to all its citizens of protecting 
persons from assaults and property from destruction; 
those functions undertaken by a municipality in furtherance 
of this duty are governmental functions. These duties are 
exercised as a part of the state's sovereignty for the benefit 
of the public living within or without the corporate limits. 50 

Police: A police department is maintained as a gov- 
ernmental function. This function extends to police sta- 
tions, jails and workhouses. The statutes allow Missis- 
sippi municipalities to work city prisoners on the streets. 
This is held as incidental to carrying out a jail sentence, 
[n a case where a prisoner was forced to work on the streets 
by a street foreman, the municipality was held not liable 
although the prisoner was manacled and seriously injured 
as a result of being forced to work while manacled. 

Nuisances: The power to abate nuisances is a legis- 
lative or governmental one and its exercise is at the dis- 
cretion of the municipality. It is only when the city allows 
a nuisance to exist upon its own property or allows the 
continued existence of the nuisance, which is itself a breach 
of an imposed duty, that the municipality can be held 
liable for its failure to abate a nuisance. The town of D'Lo 
was held liable for maintaining a nuisance in building a hog 
pound within twelve feet of a residence and in leaving a 
dead pig in the pen for ninety-six hours after its death. 51 
The city of Vicksburg has been held liable when it failed, 
after notice, to prevent private sewerage being emptied into 
gutters along the sides of its streets and flowing to a vacant 
lot, creating a nuisance. 52 The Mississippi courts are in- 
clined to protect citizens against the existence of a nuisance. 
In the last mentioned case the court said, "If the city had 
regular sewerage, it could not, without liability, so debauch 
its contents and it cannot permit connection of private 
sewerage with its gutters to effect the same injury. A 
municipality cannot avoid its ministerial duty to prevent 
befoulment of its own gutters after notice of the nuisance 
so created." 53 The ministerial duty mentioned is that of 
the city in reasonably caring for its streets and gutters. 

Fire Protection : Fire protection is uniformly held to be 
a governmental function. 54 Two Mississippi cases are illus- 

50 Pass Christian v. Fernandez, 100 Miss. 76. 

50a Warren v. Booneville, 151 Miss. 457; Code of 1930, Sec. 2421. 

51 Crawford v. D'Lo, 119 Miss. 28. 

52 Vicksburg v. Richardson, 90 Miss. 1. 

53 Vicksburg v. Richardson, 90 Miss. 1. 

54 Byrnes v. Jackson, 140 Miss. 656 ; Eattiesburg v. Geigor, 118 Miss. 
676; Walker v. Vicksburg, 71 Miss. 899; Alexander v. Vicksburg, 68 Miss. 654. 


trative of this fact. A horse was struck and killed by a fire 
wagon. Even though the fire wagon driver was an employee 
of the city, and death of the horse was the direct result of 
this employee's negligence and the owner of the horse con- 
tributed no negligence, the city was held not liable. 55 In 
another case, the driver of a fire engine was injured by the 
negligence of the fire chief in maintaining a defective shed 
for the temporary storing of the fire engine. The court held 
strict non-liability in maintaining a fire department. 56 

The municipality is, of course, not liable for its failure 
to provide a fire department or for its failure to function 
swiftly and efficiently. Nor is a water company liable for 
the destruction of a house by fire because a designated pres- 
sure was not maintained. 57 

In the prevention of the destruction of property by fire 
or flood the city is not liable. Neither is it liable for the 
torts of officers and agents in their attempt to enforce or- 
dinances and regulations under the police powers. In the 
exercise of the police powers the municipality acts in its 
governmental capacity. 58 

Supervision of Building Construction: In regard to 
regulating the manner of construction of buildings, the court 
has held the municipality to be acting in a governmental 
capacity. The city of Jackson straightened a stream in 
order to prevent damage to property by flood. The city 
bought the land through which the artificial drainage ditch 
was run; later selling the property but reserving in the 
deeds the right to direct and control the manner of erection 
of buildings beside and over the ditch. In supervising the 
construction of a building beside the stream, the city engi- 
neer insisted on supervising the details of mixing the con- 
crete and the method of pouring it. Through his ignorance, 
neglect and lack of skill the contractors suffered great 
damage. In their suit for damages against the city the 
decision of the lower court that the city was acting in a 
governmental capacity was narrowly upheld by the Supreme 
Court. Three judges of the Supreme Court concurred in 
the dissenting contention that the city had no governmental 
right to go into the details of such construction. The dis- 
senting opinion held that the city was here acting in a pri- 
vate capacity and said: "It appears to me to be a strange 

55 Alexander v. VicTcsburg, 68 Miss. 654. 

56 Eattiesburg v. Geigor, 118 Miss. 676. 

57 Wilkinson v. Water Co., 78 Miss. 389. 

58 Bradley v. JacTcson, 153 Miss. 136; Gulf port v. Sheppard, 116 Miss. 
439; Alexander v. Viclcsburg, 68 Miss. 564. 


doctrine that a municipality, which is armed with certain 
powers, can go in and interfere with private rights and 
escape the consequences of its unlawful intermeddling and 
wrongs." 59 


The following explanation of municipal liability for cor- 
porate functions is based on the interpretation of the 
Supreme Court of Mississippi. The term corporate func- 
tion is viewed from the standpoint of liability. Duties which 
are ministerial in their nature may relate to governmental 
affairs. Though it may be a governmental function to pro- 
vide parks, garbage disposal, streets, sidewalks, bridges and 
sewers the liability in Mississippi of the municipality is of 
a corporate nature. In Mississippi the principle followed 
by the court is that the maintenance of these is a ministerial 
function and relates to corporate interest only. 59a 

Light Plants: A municipal corporation is liable for all 
negligence in the control of property held in a corporate 
capacity. 60 Municipalities, as well as private corporations, 
must exercise the highest degree of care in the erection and 
maintenance of electric light and power plants. 61 The fact 
that light wires had fallen into the street has been held to 
be prima facie evidence of negligence on the part of a light 
company whether privately owned or whether owned and 
operated by a municipality. 62 A city has been held liable 
for the death of a telephone repair man who was killed as 
the result of an electric light wire falling so that it charged 
a telephone wire. 63 In another illustrative case, the city of 
Greenwood permitted an electric light customer to run a 
ground wire in a public alley. The ground wire had not been 
inspected for a year and had been broken for about two 
months previous to an accident caused by its broken condi- 
tion. The court held the city liable to the extent of six 
thousand dollars. 64 

Water Supply: Municipalities are also held strictly re- 
sponsible for the torts of their agents and employees in 
supplying water or gas to the inhabitants of the corpora- 

59 Bradley v. Jackson, 153 Miss. 136. 

59a McQuillin 's Treatise on the Law of Municipal Corporations, Vol. 6, 
Sees. 2719-2721. 

60 Mackey v. Vicksourg, 64 Miss. 777. 

61 Greenwood v. Pentecost, 148 Miss. 60; Williams v. Canton, 138 Miss. 
661 ; Telegraph Co. v. Cosnahan, 105 Miss. 615; Laurel Light Co. v. Jones, 102 
So. 1; Potera v. BrooJchaven, 95 Miss. 774; Temple v. Light Co., 89 Miss. 1. 

62 Williams v. Canton, 138 Miss. 661 ; Potera v. Brookhaven, 95 Miss. 774. 

63 Telegraph Co. v. Cosnahan, 105 Miss. 615. 

64 Greenwood v. Pentecost, 148 Miss. 60. 


tion. 65 Not only is the municipality liable for the torts of its 
agents but it is also charged with the duty of supplying an 
adequate supply of water. The Mississippi court has held 
that a municipality owning the water system was liable for 
failure to remove an obstruction from a water connection 
within a reasonable time. The city was held liable for an 
insufficient flow of water. 66 The municipality is charged 
with the duty of reasonably maintaining the water supply 
once it has entered into the enterprise. 67 However, a water 
-company is not held liable for the destruction of property 
by fire because of its failure to maintain a designated pre- 
sure. 68 

Garbage Disposal: The Mississippi court holds the haul- 
ing of dirt, trash or garbage as a ministerial duty. The city 
has, therefore, been held liable for the negligence of a driver 
of a city cart employed to this purpose. The duty is not a 
part of the state 's sovereignty and is for the benefit of those 
living within the corporate limits. 69 In cases where the 
i i scavenger" is an independent contractor, the city is not 
held liable for the negligence of the contractor. Where a 
scavenger, as an independent contractor, was trespassing 
by dumping garbage on a plaintiff's land the city was not 
held liable. The fact that the municipal authorities knew 
of the trespassing and had undertaken to stop it did not 
involve the city. 70 In another case, the cleaning of a cess- 
pool was done by an independent contractor. The job was 
negligently done which resulted in injury to an individual 
but the city was not held liable even though the city inspector 
had approved the job. The inspection was held to be of a 
governmental nature and the negligence rested upon the 
independent contractor. 71 

Parks: The care and maintenance of parks is held to 
be a corporate function of Mississippi municipalities. The 
rule is established by a recent decision of the court regard- 
ing the maintenance of a zoo. A bear of the Jackson zoo 
had been taken from its cage and chained to a tree in the 
park. A woman was badly injured by the bear while at- 
tempting to feed it. Although the woman was partially 
negligent, the court held the city liable. Not only did the 

65 Woods v. Indianola, 114 Miss. 722. 

66 Jackson v. Anderson, 97 Miss. 1; Brown v. Meridian, 102 Miss. 384. 

67 Van Norman v. Waterworks Co., 102 Miss. 736; Brown v. Meridian, 102 
Miss. 384; Jackson v. Anderson, 97 Miss. 1. 

68 Wilkinson v. Water Co., 78 Miss. 389. 

69 Pass Christian v. Fernandez, 100 Miss. 76. 

70 Laurel v. Ingram, 148 Miss. 774. 

71 Gulf port v. Sheppard, 116 Miss. 439. 


court hold the maintenance of the zoo to be a corporate 
function but it went further by saying, "It seems to us that 
the rule making it the duty of the city to exercise reasonable 
care to make its parks reasonably safe places for people 
to resort to and making the city liable for negligence is the 
better rule." 72 

Streets: A Mississippi municipality, in maintaining and 
repairing streets is exercising a corporate function. 73 In a 
recent case the court said, "Our state is quite fully com- 
mitted to the doctrine that a municipality, in exercising its 
statutory duty and prerogative of maintenance and repair 
of its streets, is exercising a corporate function." 74 The 
measure of the municipality's duty in the maintenance of its 
streets is to use ordinary care to keep them in a reasonably 
safe condition for persons using ordinary care and pru- 
dence. 75 The municipality is not held to be an insurer of the 
safety of its streets and it is not required to ensure the 
safety of reckless drivers. 76 A user may assume, however, 
that a street is reasonably safe. 77 Eepairs must be made 
from time to time, particularly on those streets used most. 78 

In order for the municipality to be liable for injuries re- 
sulting from defects in its streets it must be negligent and 
have notice. 79 The burden of proof as to negligence of the 
municipality is on the person claiming damages. 80 The lia- 
bility of a city is the same to children as to adults and the 
fact that a child was a trespasser does not excuse a city's 
negligence. 81 A defective condition in a street caused by a 
private person and permitted to exist by a city may be held 
as negligence. Where a twelve foot plank had been laid 
across a ditch by a private person and the city had taken 
no steps to remove it or make it safe, the city was held liable 

72 Byrnes v. Jackson, 140 Miss. 656, 670. 

73 Atkinson v. Decatur, 131 Miss. 707; Vicksburg v. Harralson, 136 Miss. 
872; Higginbottom v. Burnsville, 113 Miss. 219; Saxon v. Eoulka, 107 Miss. 
161; Hardin v. Corinth, 105 Miss. 99; Pass Christian v. Fernandez, 100 Miss. 
76; Pasoagoula v. Eirkwood, 86 Miss. 630; Carver v. Jackson, 82 Miiss. 583; 
Nesbitt v. Greenville, 69 Miss. 22; Vicksburg v. McLain, 67 Miss. 4; Whit- 
field v. Meridian, 66 Miss. 570. 

74 Warren v. Booneville, 151 Miss. 457, 461. 

75 Atkinson v. Decatur, 131 Miss. 707 ; McComb v. Hayman, 124 Miss. 
525; Higginbottom v. Burnsville, 113 Miss. 219; Meridian v. Crook, 109 Miss. 
700; Vicksburg v. Hennessy, 54 Mass. 391; Nesbitt v. Greenville, 69 Miss. 22. 

76 Gulf port and Miss. Traction Co. v. Manuel, 123 Miss. 266 ; Higgin- 
bottom v. Burnsville, 113 Miss. 219; Walker v. Vicksburg, 71 Miss. 899. 

77 Vicksburg v. Harralson, 136 Miss. 872. 

78 Nesbitt v. Greenville, 69 Miss. 22 ; Whitfield v. Meridian, 66 Mass. 570. 

79 Greenwood v. Harris, 89 Miss. 121 ; Saxon v. Houlka, 107 Miss. 161 ; 
Natchez v. Shields, 74 Miss. 871. 

80 Meridian v. Crook, 109 Miss. 700. 

81 McComb v. Hayman, 124 Miss. 525; Vicksburg v. McLain, 67 Miss. 4. 


for injury resulting from a person falling from the plank. 82 
The city has been held not negligent where it permitted a 
brick or stone to extend about three inches above the level 
of the street although the projection caused an injury. 83 

A municipality is not held liable for injuries from a de- 
fect in its streets in the absence of actual or constructive 
notice. 84 The question of constructive notice attributable to 
the municipality is a question of fact. The jury may decide 
on the basis of the length of time the defect has existed, the 
nature and character of the defect, the publicity of the place 
where the defect exists, the amount of travel over the street 
and other facts which tend to show whether or not the cor- 
porate authorities should have known of the defect. 85 The 
existence of a defect for five or six years has been con- 
sidered as constructive notice even though the street was 
seldom used. 86 Notice has also been presumed where the 
defect was in close proximity to the business establishments 
of the municipal officers and where they had driven over the 
street containing the defect. 87 In a case where the city had 
repaired a walk on Saturday before an accident occurred 
on Monday, the city was not held liable on the grounds of 
insufficient notice. 88 

Contributory negligence on the part of the injured party 
will excuse the municipality from liability where the cor- 
poration has exercised ordinary care in its maintenance of 
streets. The burden is usually on the injured to show af- 
firmatively that he exercised at least ordinary care. 89 The 
question of injury from defective streets, of "proper and 
reasonable care" and of contributory negligence are ques- 
tions for the jury. 90 

A municipality may be liable for obstructions in its streets 
whether placed there by itself or whether it permits some 
one else to place them there. 91 The Mississippi court has 
held a city liable for injury where barricades, erected while 
the street was being improved, interfered with travel to and 

82 Jackson v. Clarke, 152 Miss. 731. 

83 Pomes v. McComb, 121 Miss. 425. 

84 Eattiesburg v. Reynolds, 124 Miss. 352; Jackson v. Carver, 82 Miss. 
583 ; Nesbitt v. Greenville, 69 Miss. 22 ; Whitfield v. Meridian, 66 Miss. 570. 

85 Greenville v. Middleton, 124 Miss. 310. 

86 Whitfield v. Meridian, 66 Miss. 570. 

87 Saxon v. Eoulka, 107 Miss. 161. 

88 Union v. Eeflin, 104 Miss. 669. 

89 Meridian v. McBeath, 80 Miss. 485; Stainbach v. Meridian, 79 Miss. 
447; Walker v. Vidksburg, 71 Miss. 899; Vicksburg v. Hennessy, 54 Miss. 391. 

90 Eigginbottom v. Bwrnsville, 113 Miss. 219; Birdsong v. Mendenhall, 
97 Miss. 544. 

91 Nesbitt v. Greenville, 69 Miss. 22; N. O., J. 4- G. N. Ry. v. Maye, 39 
Miss. 374. 


from a plaintiff 's store. 92 A bumper placed at a street in- 
tersection by the authorities of Vicksburg was held to be a 
dangerous obstruction. The bumper was about five feet 
wide at the base and was placed at a street intersection to 
warn drivers of a dangerous intersection. Although a sign 
warned drivers of the bumper and the injured driver had 
some knowledge of its existence, the city was held liable. 93 

The municipality is not required to keep the entire width 
of its streets open and safe for travel providing that the 
part which is set aside is wide enough for safety and con- 
venience. 94 The city of Gulfport allowed the erection of poles 
in the street but outside the traveled way. A death caused 
by a collision with one of these poles was held as the result 
of contributory negligence on the part of the driver. 95 
Streets may be devoted to any proper purpose incidental to 
construction and maintenance of public thoroughfares. The 
municipality may be liable to abutting property owners for 
damages resulting from any additional servitude placed on 
the property by any such use not incidental or necessary to 
its use by the public. 96 A municipality may be held liable 
for damages inflicted on abutting property by the improper 
use of streets in providing drains. 97 A city may trim shade 
trees between the street and the sidewalk or even remove 
them without being liable, but if the action is not necessary 
the municipality will be liable. 98 

Under the constitution and the law the municipal cor- 
poration has no right to take or damage property for public 
use except upon just compensation. 99 The city must make 
such compensation when damages are inflicted by a change 
of a street grade. 100 Where the city is not negligent in 
changing a grade, no liability attaches to the city but dam- 
ages are in the way of compensation for property. 101 Such 

92 Funderburle v. Columbus, 117 Miss. 173. 

93 Vicksburg v. Harralson, 136 Miss. 872. 

94 McComb v. Hayman, 124 Miss. 525; Hazelhurst v. Shows, 113 Miss. 
263 ; Butler v. Oxford, 69 Miss. 618. 

95 Gulfport $ Miss. Traction Co. v. Manuel, 123 Miss. 266. 

96 Laurel v. Ream, 143 Miss. 201 ; Hazelhurst v. Mayes, 84 Miss. 7. 

97 Laurel v. Hearn, 143 Miss. 201. 

98 Durant v. Castleberry, 106 Miss. 699; Brahan v. Meridian, 97 Miss. 326; 
Hazelhurst v. Mayes, 84 Miss. 7. 

99 Constitution of 1890, Sec. 17; Code of 1980, Sec. 2413. 

100 Oliver v. Macon, 111 Miss. 349; Brown v. Vicksburg, 108 Miiss. 510; 
Murphy v. Meridian, 103 Miss. 110; Jackson v. Williams, 92 Miss. 301; Merid- 
ian v. Higgins, 81 Miss.* 376; Vicksburg v. Herman, 72 Miss. 211. 

ioi Chidsey v. Pascagoula, 102 Miss. 709. 


compensation would possibly include the cost of raising a 
residence, surfacing a yard and laying a walk. 102 

When an abutting property owner by petition requests 
a city to grade a street to its proper lines and the city does 
so without objection from the owner, the owner is estopped 
from claiming damages. 103 However, where a property 
owner is required by a resolution of the municipality to 
make improvements and does so, the owner waives no 
right to damages. 104 

In making improvements the municipality must exercise 
care. In grading a street near a school a city left a cliff 
thirty or forty feet high. An eight year old child was killed 
by the caving in of a part of the bank. The Supreme Court 
upheld the trial judge 's instruction that the city was liable 
even though it appeared that the bluff was left in a rea- 
sonably safe condition at the time of the grading. 105 

Although Mississippi municipalities are empowered to 
close and vacate streets, 106 when in its judgment it is for the 
public good, persons who have suffered special damages 
must have compensation. 107 The courts have jurisdiction 
to grant relief against improperly closing a street or alley 
as such an act is a judicial one and not a legislative one. 108 
A land owner is not entitled to compensation for the clos- 
ing of a street which did not abut his property. 109 The 
abutting owner must have a special easement in the use of 
the street being closed, otherwise he cannot complain of 
the act. 110 

Sidewalks and Bridges: The same rules of liability ap- 
ply to the maintenance and repair of sidewalks and bridges 
as apply to streets. The municipality is required to exercise 
ordinary care. 111 In case of negligable defects of which the 
municipal authorities have notice resulting in injury, the 

102 Murphy v. Meridian, 103 Miss. 110; Meridian v. Higgins, 81 Miss. 

103 Adams v. Vicksburg, 124 Miss. 369; Meridian v. Hudson, 111 Miss. 

104 Jaclcson v. Muckenfuss, 101 Miss. 555. 

105 Vicksburg v. McLain, 67 Miss. 4. See also Jackson v. Merchants* 
Bank, 112 Miss. 537. 

106 Code of 1980, Sec. 2412; Poythress v. M. $ O. By., 92 Miss. 638; 
Ala. By. v. Turner, 95 Miss. 594; Laurel v. Rowel, 84 Miss. 435. 

107 Berry v. Mendenhall, 104 Miss. 94. 

108 Polk v. Hattiesburg, 109 Miss. 872. 

109 Wesson v. Swinney, 144 Miss. 867. 
no Jackson v. Welch, 136 Miss. 223. 

in Meridian v. Peterson, 132 Miss. 7; Dahmer v. Meridian, 111 Miss. 
208; Meridian v. Crook, 109 Miss. 700; Cohea v. Coffeeville, 69 Miss. 561. 


municipality is liable. 112 The burden of proof is on the 
plaintiff to show the city was negligent. 113 Contributory 
negligence usually excuses the city from liability. 114 In one 
Mississippi case a city was held liable notwithstanding some 
contributory negligence on the part of the plaintiff. In this 
case the city had permitted an unguarded hole to remain in 
a sidewalk for a long period of time. 115 The municipality 
may find itself liable for the maintenance and repair of a 
privately built bridge if the use of the bridge is sufficiently 
public. Bridges, whether over gutters or ditches, whether 
at street intersections, regular crossings or at other places, 
may be used by the public to such an extent that the muni- 
cipality is liable for their proper maintenance and care. 116 

Sewers: Among the corporate capacities of Mississippi 
municipalities is the construction and maintenance of sew- 
ers. In an early case, the court held a city liable for dam- 
ages caused by a city employee negligently closing the wrong 
inlet to a sewer. The court held that the action was purely 
mechanical, it was no governmental function and the city 
was liable for the tort of its employees in constructing 
sewers, gutters and drains. 117 A municipal corporation has 
been held negligent and liable where damage was caused 
by faulty and inadequate construction. 118 A municipality 
which compels connections with a sewerage system has been 
held liable to the owner of a farm upon which the system 
emptied, although the system did not belong to the muni- 
cipality. 119 

The use of a ditch by a city for more than ten years to 
carry off drainage water results in a prescriptive right to 
maintain the ditch for the same character of service. The 
city, however, is liable if the character of service is changed 
by an increase in the flow of water or by an enlargement of 
the ditch. 120 A municipality has even been held liable for 
damages due to an insufficient sewer being substituted for 
one originally on the plaintiff's premises. 121 

112 Jordan v. Jackson, 133 Miss. 440; Natchez v. Lewis, 90 Miss. 310; 
Pascagoula v. KirJcwood, 86 Miss. 630; Hardin v. Corinth, 105 Miss. 99; Stain- 
bach v. Meridian, 79 Miss. 447; McCauley v. Greenville, 37 So. 818. 

113 Meridian v. Crook, 109 Miss. 700. 

114 Jackson v. Greenville, 72 Miss. 220; Cohea v. Coffeeville, 69 Miss. 561 ; 
Meridian v. Hyde, 11 So. 108. 

H5 Jordon v. Jackson, 133 Miss. 440. 

116 Meridian v. Peterson, 132 Miss. 7. 

117 Semple v. Vicksburg, 62 Miss. 63. 

H8 Tyler v. Bay St. Louis, 34 So. 215; Fewell v. Meridian, 90 Miss. 380. 
H9 Thompson v. Winona, 96 Miss. 591. 

120 Sturges v. Meridian, 95 Miss. 35; W^atkins v. Port Gibson, 113 Miss. 

121 Fewell v. Meridian, 90 Miss. 380. 



In Mississippi it is not necessary that a claim be pre- 
sented to the governing board of the municipal corporation 
before suit may be instituted. 122 Municipal corporations 
have no special rights not common to corporations in general 
in respect to actions. Municipalities may be sued in the 
courts to recover money, the same as other corporations. 123 
Although municipalities are not subject to a suit by garnish- 
ment for debts arising from the exercise of its governmental 
functions, the immunity does not extend to the exercise of 
corporate functions. 124 

The courts have the power to make their judgments ef- 
fective against a municipality. To quote the court : " When 
the debt is a binding obligation, a municipality, like any 
other creditor, must pay the debt if it has the property so 
to do, although some inconvenience may be suffered there- 
by. m25 A writ of mandamus may be used against a muni- 
cipality to compel the payment of a judgment. Mandamus 
will not compel a municipality to raise its tax levy above 
the constitutional limitation but it may require a warrant 
to be issued and filed, giving it priority over other warrants 
to be paid out of the general funds. 126 

By a law passed in 1930, the municipalities are author- 
ized to carry such employer's liability insurance as the 
municipal authorities may determine. 127 This is particu- 
larly advantageous to smaller municipalities. 


The question of municipal liability is in an unsatisfactory 
condition. States vary in their attempts to draw the line 
between corporate and governmental functions. The Mis- 
sissippi court has tended to classify more functions as cor- 
porate than have most other states. 

Political scientists have often divided municipal func- 
tions into three classes: (1) those uniformly held as gov- 
ernmental; (2) those uniformly held as corporate; and (3) 
those which some states class as governmental and others 
class as corporate or which the same state will classify dif- 
ferently under different circumstances. This latter class 

122 Pylant v. Purvis, 87 Miss. 433. 

123 State Board of Education v. West Point, 50 Miss. 638; State Board 
of Education v. Aberdeen, 56 Miss. 518; Vicksburg M. E. Church South v. 
Vicksburg, 50 Miss. 601. 

124 Clarksdale Compress Co. v. Caldwell, 80 Miss. 343, criticizing DoUman 
v. Moore, 70 Miss. 267. 

125 Jonestown v. Ganong, 97 Miss. 67, 90. 

126 Jonestown v. Ganong, 97 Miss. 67. 

127 Code of 1930, Sec. 2443. 


is commonly known as the "twilight zone.' 7 The tendency 
in Mississippi is to class the functions in the twilight zone 
as corporate. 

The doctrine that "the state can do no wrong" is the 
basis of the interpretation that a municipality cannot be held 
liable for doing wrong so long as it exercises purely gov- 
ernmental functions. On the European continent the lia- 
bility of municipalities is much broader than in the United 
States* The French communes are generally responsible 
for damages due to the torts of their agents, irrespective of 
whether the act took place in the administration of the city's 
property or services, or in view of the performance of a 
strictly governmental function. Failure to inspect the build- 
ing of a bridge, or an injury received from the tort of a 
policeman may cause the French city to be liable. No such 
rule is prevalent in the United States even by those states 
holding a comparatively broad rule of liability. 

Usually the only remedy for a party injured incidental 
to the exercise of a governmental function is an action 
against the officer who committed the injury. Such actions, 
even when successfully prosecuted, usually mean little in the 
way of receiving compensation for the damage suffered. 

Complaints have frequently been made as to the injustice 
of the generally accepted rule of non-liability. Many be- 
lieve that the individual bears too much of the burden of 
those injuries which are the result of inefficient adminis- 
tration. They hold that since the municipality functions in 
the interest of all, the damages inflicted by the city in 
carrying out these interests should be born by all. Where 
a fire engine speeding to a fire injures an innocent by- 
stander on a sidewalk, the injured has no claim under the 
present doctrine. Yet the speeding of the fire engine is 
permitted in order to protect the community and to further 
its general interest, and if injury is done the community 
should bear the cost of the damage. 

On the other hand, to hold the city liable for negligence 
in all cases would be unsound. It would be absurd to make 
the city liable for all fire losses, all losses from theft, and 
for damages due to mistakes in the administration of health 
measures. Every field of action or inaction might become 
a potential suit against the city. Higher taxes would pos- 
sibly result in more injustice than under the present rule. 

The present tendency seems to be toward broadening the 
range of corporate liability. In view of this fact it has been 
suggested that the city avoid "private or corporate " func- 
tions. The demand for the expansion of municipal activity 


makes this practically impossible. Another suggestion has 
been to seek legislation declaring certain functions govern- 
mental. This would not avoid present complaint regarding 
non-liability although it would contribute some definiteness 
to the division of functions. A third suggestion has been 
to recognize the city's responsibility irrespective of the 
distinction between corporate and governmental functions. 
The question which arises under this third suggestion is 
whether there could be any way to protect the city against 
excessive litigation over unjust claims and from being sub- 
jected to exhorbitant awards. 

The present tendency in the United States is along the 
line of a broad conception of municipal liability and in this 
tendency Mississippi is one of the leaders. The trend is in 
the direction of bringing about a minimum of hardship or in 
i l socializing the load. ' ' 

The fear that municipalities will be ruined by a broad 
conception of liability is groundless. Insurance may be used 
as a means of distributing the burden. The real means of 
meeting increased liability, however, is to provide greater 
care and efficiency in the administration of the city 's work. 

Bar Association Department 

Pre-Convention Committee Reports 

(Editor's Note: This department is added to the pre-convention issue to 
afford an opportunity for the examination and study of the various committee 
reports to the Mississippi State Bar Association with the idea that the Associa- 
tion may proceed to a disposition of the matters contained in the reports.) 


To the President and Members of the Mississippi 
State Bar Association: 

The President of the Association in his annual address 
at the Biloxi meeting, April 30th and May 1st, 1930, sug- 
gested and urged the Association to consider a reorganiza- 
tion along some practical line in order that it might the 
more effectively perform the functions which the^ public 
has a right to expect and demand of it as an organization. 

In response to the suggestion, Judge D. M. Russell made 
the following motion, which was unanimously adopted, 
"that a committee of five be appointed by the incoming 
President to study the question suggested and report back 
to the Association the result of their work at the next an- 
nual meeting." 

Pursuant to this motion, President Butler appointed 
your committee, who submit, herewith, for consideration of 
the Association, the result of their study of the matter of 
a reorganization of the Association together with recom- 


The Mississippi State Bar Association was organized, as 
now constituted, at Oxford, Mississippi in 1906. Hon. Gar- 
vin D. Shands was elected its first President. The Associa- 
tion was incorporated under Sec. 233 of the Code of 1906 
in accordance with the provisions of Chap. 24 on corpora- 
tions. Sec. 233 provides for such capital stock as the cor- 
porations may fix within legal limitations, but capital stock 
is not essential to its existence. All attorneys of the state 
of good moral character may become members of the cor- 
poration upon making application for that purpose and 



upon compliance with the rules and regulations of the 

During the quarter of a century of its existence many- 
distinguished lawyers of the state have served as presi- 

The membership of the organization as a whole, through 
the years, has been composed of a group of able and patri- 
otic lawyers, men of learning and wide influence, who loved 
their profession and were willing to lend their influence and 
support in creating a bar of lofty ideals and a judiciary the 
equal of any other state in the Union. 

The membership of the Association has been small, as 
compared with the entire bar of the state. Possibly not 
more than one-sixth of the entire state bar, until very recent 
years, were members, and even now, with the largest mem- 
bership in the history of the Association, not more than 
one-fourth of the bar of the state are active members. 

The organization has been able to accomplish good, and 
has wielded an influence on the whole bar and in the halls 
of legislation, despite the fact it has been but loosely knit 
together, and clothed with no statutory powers. But the 
present organization of our bar is inadequate to the needs 
of the profession from the standpoint of its individual in- 
terest and from the standpoint of service to the public. If 
it is to retain the esteem and confidence of the public, it 
must bring about, through a more efficient organization, 
those vital things necessary to inspire in the public mind 
a due and wholesome regard for the profession. 

Types of Present Day Bar Organizations 
At present there are three types of bar organizations in 
the United States. First, the type of which our own or- 
ganization is an illustration. Second, an affiliated or fed- 
erated bar organization, such as exists in Minnesota and 
Wisconsin. Third, the integrated or unified bar organiza- 
tion. The committee deems it unnecessary to discuss the 
first plan, and will devote its attention to the second, and 
more particularly, the third. 

The Affiliated or Federated Plan 
The primary purpose of the affiliated plan is to increase 
the membership of the State Bar Association and make it 
more representative. In order to accomplish this purpose, 
local bar associations are organized in the more populous 
centers. The local organization consisting of all the law- 
yers in that particular territory. Each local organization 


then become affiliated with the State Bar organization and 
is represented in the State Bar organization by delegates. 
Each member of the local organization is required to pay 
annual dues, all of which goes to the State Bar Association, 
except what is absolutely necessary for the needs of the 
local organization. 

In the few states where the plan exists a larger part of 
the bar is reached and brought into contact with the State 
Bar organization and its work. The influence of a rep- 
resentative part of the bar under this scheme is made 
available when the state organization desires to accomplish 
any project. This plan, in the states where it is in opera- 
tion, has never fully met the needs and requirements of the 
bar, but is regarded as an improvement over the loose vol- 
untary organizations found in this and other states. It 
may be stated, upon information in hand, that the affiliated 
or federated plan is not wholly satisfactory. This is evi- 
denced by the fact that two of the states, Oregon and Wash- 
ington, where the plan was adopted, have now turned to 
the unified bar plan, which they are endeavoring to have 
their legislatures enact into law. 

The Integrated or Unified Bar Plan 

The first suggestion of this plan in the United States 
came from the American Judicature Society in 1919 and 
was known as the American Judicature Society's Bar 
Organization Act. It was made the basis of discussion at 
the Conference of Bar Association Delegates held in Boston, 
September 2nd, 1919 and presided over by Hon. Elihu Root. 

In 1920 the Conference of Bar Association Delegates of 
the American Bar Association put their stamp of approval 
upon what is known as the Conference of Bar Association 
Delegates Model Bar Act, which, with some modification, 
is to all intents and purposes the same as the American 
Judicature Society's Bar Organization Act. This Model 
Bar Act has the approval of the American Bar Association. 

The first state to adopt legislation of this character was 
North Dakota, whose original acts were passed in 1921. 

Then followed Alabama and Idaho in 1923 with legisla- 
tive acts creating a pure integrated bar, these two states, 
in fact, creating the first outright integrated state bars in 
the United States. 

In view of the tendency of the legal profession to cling 
to long established forms and to turn to something new but 
slowly and indifferently, it may be said a somewhat steady 
growth of the integrated bar plan has taken place. The 


idea has taken root more rapidly in the great Northwestern 

This possibly is attributable to the nearness of the 
Canadian Provinces where the integrated bar plan has al- 
ways been the established order. 

The following states at this date have adopted the inte- 
grated bar plan : North Dakota, Alabama, Idaho, California, 
Nevada, New Mexico, Oklahoma, South Dakota and Utah. 

Bills have been prepared by the State Bar Associations 
and will be pressed at the next meeting of their respective 
legislatures in the states of Virginia, Montana, Kentucky, 
Ohio and Texas. 

In the states of Michigan, Oregon, Washington and 
Missouri, Bar Association Committees have been appointed 
to do the same work now being done by this committee. 

To summarize : nine states have adopted the plan by 
proper legislative acts, five bar associations have pre- 
pared bills and are ready to present them at the next session 
of their legislatures, and four bar associations, not includ- 
ing our own, have committees at work making a study of the 
plan. A total of nineteen states. 

The most distinctive feature of the plan is an all-inclu- 
sive incorporated association. Every lawyer, of necessity, 
belongs to it and pays annual dues. All lawyers of the state 
who are engaged in active practice are active members. 
Those who are retired, or are engaged in other occupations, 
are classified as inactive. 

Any lawyer on the active list failing to pay his annual 
dues, is automatically suspended from the privileges of 
practice until all arrears are discharged. The license fees, 
or dues, are paid into the state treasury as a separate fund 
and checked out by the commissioners. 

The bar is governed by a Board of Commissioners of 
the State Bar. The number of commissioners constituting 
this board varies according to the idea or desire of the par- 
ticular state bar. Alabama has a Board of Commissioners 
consisting of as many members as there are judicial circuits, 
who hold office for three years. These commissioners are 
selected by members of the State Bar who vote by ballot. 
In some of the states the commissioners are called gov- 

On this Board of Commissioners or Governors, by leg- 
islative act of incorporation, is conferred certain authority 
or power. The power so conferred varies slightly in the 
several states that have adopted the integrated bar act, but 
substantially, all have followed the Model Bar Act suggested 


by the Conference of Bar Association Delegates. For the 
purposes of this report attention is called to Sec. 6 of the 
Alabama Act, which provides: "The Board of Commis- 
sioners shall have power to determine by rules, the qualifi- 
cations and requirements for admission to the practice of 
law, and to conduct through a Board of Examiners, herein- 
after provided for, the examination of applicants, and they 
shall from time to time certify to the Supreme Court and 
to the Secretary of the Board of Commissioners the names 
of those applicants found to be qualified. . . . The Board 
shall, subject to the approval of the Supreme Court, form- 
ulate rules governing the conduct of all persons admitted 
£o the practice and shall investigate and pass upon all 
complaints that may be made concerning the professional 
conduct of any person who has been or who hereafter may 
jbe admitted to the practice of the law, and subject to like 
approval, formulate rules governing the reinstatement of 
members of the bar who have been disbarred and pass upon 
all petitions for reinstatement. Said Board shall have 
power to appoint one or more committees to take evidence 
on behalf of the Board and forward the same to the Board. 
In all cases involving suspension, exclusion or disbarment, 
testimony in reference thereto shall be taken at the court 
house of the county of the residence of the party charged, 
provided the evidence of witnesses residing outside of said 
county may be taken in the same manner as provided by 
law for the taking of depositions, in civil cases. In all 
cases in which the evidence, in the opinion of the majority of 
the Board, justifies such a course, they shall take such 
disciplinary action by private or public reprimand, suspen- 
sion from practice of the law, or exclusion and disbarment 
therefrom, as the case shall in their judgment warrant, 
provided that in case of exclusion and disbarment two-thirds 
of the Board shall vote affirmatively before exclusion and 
disbarment become effective, and provided further, that said 
Board shall not have jurisdiction over anything which may 
have occurred before the passage of this act. The Supreme 
Court may; and on petition of the party aggrieved must, 
in any case of suspension or bisbarment from the practice, 
review the action of the Board, and may, on its own motion, 
and without the certification of any record, inquire into 
the merits of the case and take any action agreeable to 
their judgment. Rules regulating the manner of such re- 
view and providing for the certification of evidence, or if 
the Supreme Court desire, the taking of additional evidence 


shall be promulgated by said Board and become effective 
upon approval of the Supreme Court. 

The Board of Commissioners shall also have power to 
make rules and by-laws not in conflict with any of the terms 
of this act concerning the selection and tenure of its officers 
and committees and their powers and duties, and generally 
for the control and regulation of the business of the Board 
and of the State Bar. . . ." 

The California and Oklahoma Acts, Sec. 26, dealing with 
disbarment or suspension, provides, "upon the making of 
any decision resulting in disbarment or suspension from 
practice, said Board shall immediately file a certified copy 
of said decision, together with said transcript and findings 
with the clerk of the Supreme Court. Any person so dis- 
barred, or suspended, may within sixty days after the fil- 
ing of said certified copy of said decision petition said 
Supreme Court to review said decision, or to revise or 
modify the same, and upon such review the burden shall be 
upon the petitioner to show wherein such decision is er- 
roneous or unlawful, etc. ' ' 

Sec. 14 of the Alabama Act provides, "The Board of 
Commissioners shall establish rules governing procedure 
in cases involving alleged misconduct of the State Bar and 
may create committees for the purpose of investigating 
complaints and charges, which committees may be empower- 
ed to administer discipline in the same manner as the Board 
itself, but no order for the suspension or disbarment of a 
member shall be binding until approved by the Board." 

Sec. 15. "The Rules and Regulations adopted by the 
Board relative to disbarment or admission to the bar shall 
not become effective until approved by the Supreme Court. ' ' 

Sec. 16. Gives to the Board power to summon and ex- 
amine witnesses under oath and compel attendance and 
compel the production of documents, etc. 

Sec. 17. Deals with the rights of the accused, as to 
notice and opportunity to defend by introduction of evi- 
dence and examination of witnesses and to be represented 
by counsel. 

In Thompson vs. Board of Commissioners, 216 Ala. 694, 
112 So. 919, the Supreme Court of Alabama affirmed the 
order of the Commissioners, proceeding under the provi- 
sions of this act, disbarring the defendant. 

Under the unified bar act in addition to disciplinary 
work, the bar is engaged, through its committees, in wide 
fields of activities. To illustrate, there is a group or com- 
mittee engaged in what is known as the "Section Work." 


This is a study of problems having to do with the improve- 
ment of the law and the administration of justice. The 
Board of Commissioners, or Governors, as they are called 
in California, report they have given much study and time 
to problems of this nature. The law schools in that state 
cooperate with the Board of Governors in doing research 
work of a nature which serves as an aid in working out a 
better administration of justice. Too great emphasis can- 
not be placed upon this feature of the integrated bar act. 
The Association is constantly at work in a constructive 
way for the improvement of substantive and precedural 

Advantages of This Type of Bar Organization 
The committee, in order not to burden the Association 
with too great detail, has enumerated below what appears 
to them, from their study of the subject, to be the definite 
advantages of the integrated or all-inclusive incorporated 
bar plan over the voluntary State Bar Association. 

(1) The integrated incorporated bar has statutory 
powers commensurate with its responsibilities to the bar 
and public. The bar as a whole and every member of the 
bar is held responsible for the delinquencies of every other 
lawyer. A profession that harbors men whose honesty is 
not above question will never deserve nor receive the con- 
fidence of the public. 

(2) Every lawyer who steals creates an impression on 
the lay mind that most lawyers are thieves. Every lawyer 
who is unethical in his conduct produces the impression in 
the mind of laymen that many lawyers are unethical. A 
bar that lacks the power to efficiently and effectively dis- 
cipline unethical members in an expeditious manner is with- 
out power to protect the public and the great majority of 
honest lawyers from the unworthy members of the profes- 
sion. The unified bar plan provides an effective and speedy 
plan of discipline. It provides for grades of punishment to 
be meted out according to the gravity of the offensive con- 
duct. The punishment may consist of a private reprimand, 
a public reprimand, a suspension for a definite time, or 
disbarment for all time. 

(3) It brings all lawyers into its membership and there- 
by greatly increases the number who participate in bar 
association activities, and at the same time makes every 
lawyer amenable to the ample statutory disciplinary power 
and influence of the association. 

(4) It makes it possible to bring to bear the power and 


force of a united bar upon any matter of interest to the 
public or profession. 

(5) It is a definite, legally organized instrumentality, 
recognized by the courts, the legislature and the people, as 
an essential part in the machinery operated for the admin- 
istration of justice. 

(6) It makes the bar association work a continuous and 
not a spasmodic activity where important questions are 
passed upon without the possibility of proper deliberation. 
The entire bar become members of a corporation engaged 
in carrying out definite programs upon which is brought 
to bear the matured thought of the bar, and at the same time 
the association is not deprived of the enjoyment of the social 
phases of our annual meetings. 

(7) It insures the necessary funds with which to finance 
the undertakings of the association and makes appeals to 
the legislature for financial assistance unnecessary. 

(8) The machinery is present for bar examinations of 
those who desire to become members of the association and 
for those seeking admittance from other states. Leader- 
ship comes largely from the ranks of the lawyers. This 
leadership should continue, but it will not continue, unless 
the members of the bar are adequately trained, are un- 
selfish and honest. Wise laws will not be enacted by men 
without proper preparation, unselfish laws will not be 
drafted by men seeking nothing higher than their own in- 

In short, an integrated bar plan has adequate machinery 
for dealing with such questions as professional ethics, dis- 
cipline, unlawful practice of the law, educational require- 
ments, distribution of information, public relations and 
research in problems of legislative and judicial reform. 

Is Such An Integrated Bar Act Constitutional? 

This question, among others, has been passed on by the 
Supreme Courts of Idaho, Nevada and California, and held 
to be constitutional without dissent. (For information of 
the Association particular points decided by the courts are 
set out below.) 

In re Cate (Cal.) 279 Pac. 131. 

In re Peterson (Cal.) 280 Pac. 124. 

In re Henry, 46 Ida. 578, 269 Pac. 416. 

In re Scott, 292 Pac. 291 (Sup. Ct. Nevada). 

In re Richardson, 79 Cal. Dec. 477, 288 Pac. 669. 

Barton vs. State Bar, 289 Pac. 818 (Cal.) (1930). 

Carpenter vs. State, 81 Cal. Dec. 76 (1930). 


The rules of the Supreme Court are rules of professional 

Barton vs. State, 80 Gal. Dec. 45, 289 Pac. 818. 

The State Bar Act is not unconstitutional as a local or 
special law. 

State Bar vs. Superior Court, 207 Cal. 323, 278 Pac. 432. 

In re Edwards, 45 Ida. 382, 228 Pac. 1068. 

The State Bar Act is not unconstitutional as creating a 
corporation by Special Act. 

State Bar vs. Superior Court, 207 Cal. 323, 278 Pac. 482. 

The act is a regulatory measure under the police power. 

Mcintosh vs.. State Bar, 81 Cal. Dec. 143 (1931). 

The Supreme Court has exclusive jurisdiction to admit 

In re Weyman, 92 Cal. App. 646, 268 Pac. 971. 

Sec. 26 of California Act, (Same as Sec. 6 of Alabama 

Sec. 26 does not provide for an unconstitutional distri- 
bution of governmental powers, nor does it vest judicial 
powers in the Board of Governors. 

In re Shattuck, 208 Cal. 6, 279 Pac. 998. 

In re Peterson, 207 Cal. 323, 278 Pac. 432. 

State Bar vs. Superior Court, 207 Cal. 323, 278 Pac. 432. 
Sec. 26 of California Act. 

Sec. 26 is not unconstitutional as denying due process 
of law, nor does a proceeding under the state bar act de- 
prive anyone of property or right. Notice and a hearing 
are provided for and a hearing given in the court of last 

In re Peterson, 208 Cal. 42, 280 Pac. 124. 

In re Bruen, 102 Wash. 472, 172 Pac. 1152. 

In re Peterson, 280 Pac. 124 (Cal.) 
Sec. 26 of California Act. 

The decision of the Board of Governors in proceedings 
before it are merely recommendatory in character, and only 
orders which have effect of working disbarment of a person 
are the final orders of the Supreme Court. 

In re Shattuck, 208 Cal. 6, 279 Pac. 998. 

In re Peterson, 280 Pac. 124 (Cal.). 

Brydonjack vs. State Bar, 281 Pac. 1018 (Cal.). 

The rules of professional conduct formulated by the 
Board of Governors of the State Bar by the approval of the 
Supreme Court, thereby become the rules of that court, and 
the power of the court to make reasonable rules and regu- 
lations is not an open question. 


Barton vs. State Bar, 289 Pac. 818. 
Brydonjack vs. State Bar, 281 Pac. 1018. 

It Is Not An Experiment 

The study of the subject leads the committee to think the 
practical workings of the integrated bar act has passed the 
experimental stage in the United States. 

The committee has sought and obtained reliable informa- 
tion from lawyers of prominence in each state where the 
integrated bar act has been adopted. The practical work- 
ing of the act and its efficiency and superiority over the 
voluntary association is unanimously asserted. The act has 
been in operation in North Dakota for ten years, Alabama 
and Idaho eight years, Nevada eight years, and California 
for six years. A sufficient length of time in which to test 
the efficiency of the act. 

It should be kept in mind an integrated bar plan is not 
a new or modern scheme of bar organization. It has always 
existed in Canada, England and all the English speaking 
dependencies. It exists and has existed through the years 
in countries of Continental Europe. 

The plan has the unqualified indorsement of the Con- 
ference of State Bar Delegates of the American Bar Asso- 
ciation and such outstanding lawyers as Charles Evans 
Hughes, Elihu Eoot, John W. Davis, Chas. A. Boston, 
President of the American Bar Association, Hon. Henry 
Upton Sims, of Alabama, retiring President of the Ameri- 
can Bar Association, and Hon. Herbert Harley, Secretary 
of the American Judicature Society. 

Recommendation of Committee 
From a study of the question and from the ideas of 
thoughtful and competent lawyers in the states where the 
integrated bar plan has been adopted, the committee is of 
the opinion the plan is safe, practical, and workable. We 
believe the plan presents decided superiority and advan- 
tages over any other plan of bar organization now in ex- 

It may not be a panacea for all the evils common to the 
profession of the law, but it at least suggests and perfects 
a satisfactory way out of many of them. 

We, therefore, recommend to the Association the ap- 
pointment by the incoming President of a committee of five, 
one from each Supreme Court District, and two from the 
state at large, who shall be instructed to prepare the neces- 
sary legislative acts to put into operation an integrated 


incorporated bar act in this state, making such changes in 
the plan as they think necessary to fit the phases of our 
state constitution. 

This committee to make a report of its work to the 1932 
meeting of the Association, together with any suggestions 
or recommendations the committee may think wise as to 
further procedure in order to make the proposed legislation 

Kespectfully submitted, 

T. C. Kimbrough, Chairman, 

R. E. Wilbourne, 

D. W. Houston, 

J. N. Flowers, 

W. H. Powell, 

D. M. Russell. 


To the President and Members of the Mississippi 
State Bar Association: 

We report with pleasure that the efficient Code Commis- 
sion, heretofore appointed by the Governor under House 
Bill No. 16 of the 1928 session of the Mississippi Legislature, 
has completed its work. 

The Bar of the State are indebted to the Commission and 
to the Legislature for this codification and annotation of the 
general statutes of the State, together with the annotation 
of the Constitution of the State and Amendments thereto. 

The committee further calls attention to the majority 
and minority reports of the Special Committee to make a 
survey and study of the Courts of Justice of Mississippi, 
which appear in the Proceedings of the Twenty-Fifth An- 
nual Meeting of this Association. 

Your committee regards the establishment of a Judicial 
Council, or a Rule Making Commission, as of essential im- 
portance, and we commend these subjects to the further 
study and action of the Association. 

Respectfully submitted, 

T. Brady, Jr., Chairman , 
W. W. Magruder, 
Walter Sillers, 
George W. Currie. 





To the President and Members of the Mississippi 
State Bar Association: 

The committee has no suggestions to offer for consid- 
eration by the Association. Such matters as might be dis- 
cussed have been reported to and acted on by the Associa- 
tion in its prior meetings and this committee believes, 
therefore, that further action on those recommendations 
has been foreclosed. 

Respectfully submitted, 

A. H. Jones, Chairman. 


To the President and Members of the Mississippi 
State Bar Association: 

The By-Laws provide that there shall be 

7. "A committee to be composed of five members, of 
which the President shall be ex-officio member, whose duty 
it shall be to appear before the Legislature at each session 
thereof, at the expense of this Association, there to present 
and urge upon the Legislature the desirability of enacting 
into law such suggestions.' ' 

There were only two suggestions made at the last meet- 
ing of the Association : 

1. ' * That a Judicial Council be established by the legis- 
lature for the continuous study of the problem of the promo- 
tion of justice in our courts/ ' Although the 1930 Session 
of the Legislature was being held at that time, the session 
adjourned during the month of May and this committee was 
not appointed in time to take any action in regard to that 

2. "That the Legislature be asked to make an appro- 
priation of Ten Thousand ($10,000.00) Dollars to be used 
under the direction of the President of this Association in 
the prosecution of disbarment cases. ' ' The President of the 
Association, Mr. Butler, without delay, had a bill introduced 
to carry out this recommendation. The bill was introduced 
in the House, favorably reported by the committee and 


passed the House, but was indefinitely postponed in the 

Respectfully submitted, 

Leon P. Hendrick, Chairmcm, 

James McClure, 

W. G. McLain, 

J. L. Byrd, 

Geo. Butler, ex-Officio Member. 


To the President and Members of the Mississippi 
State Bar Association: 

The Special Committee appointed by the President pur- 
suant to a resolution adopted at the last session, to draft 
the necessary legislative bill to carry out the recommenda- 
tions of a former committee in respect to the creation of a 
Judicial Council of fifteen members, with limited rule mak- 
ing power, respectfully reports as follows : 

Except for the fact that the resolution aforesaid re- 
quired that the committee should draft a short practice act 
which, if enacted, would stand as the basis of, and as funda- 
mental to, all rules thereafter promulgated, the task as- 
signed to this committee would not have been difficult and 
a full and final report could easily have been made to the 
present session. The inclusion, however, of the special 
feature just mentioned, has involved, as will be at once 
obvious, a wide and comprehensive study of a vast literature 
of the procedural law going back through a long course of 
years, and has demanded of the committee, if their sugges- 
tions were to be worth while, an application of time and 
thought to the subject far beyond the requirements of a 
committee in the ordinary course of work in this Associa- 
tion; and, such an undertaking requires that the general 
situation shall be such that the proper thought may be ap- 
plied without the distraction of abnormal or depressed con- 
ditions among our people, to whom, in aid and sympathy, 
the first interest of members of the legal profession is al- 
ways devoted. 

The general adverse conditions which have prevailed 
throughout the state during the past twelve months, and 
which are still upon us, need not be more than mentioned. 
They are and have been well known to us all. It has not 
been practical, or even possible, to bring the minds of 
members to the subject assigned to this committee during 


this period. And even if it had been, it is as certain as 
anything can be that rests in the future, that if this com- 
mittee had now reported said proposed legislative draft in 
full, and it were adopted at this session of the Association, 
there would be no probable chance that it would or could 
receive consideration at the next, or 1932, session of the 
Legislature. That body at that session will be engrossed 
and encompassed by questions of State revenues and State 
finance, and general State management beyond those which 
have confronted a legislative session in many years, and 
there can be no reasonable hope that a subject such as we 
have here in hand could have a fair opportunity on the 
calendar of a legislative session beset with so many press- 
ing problems of absolute necessity as will be before the next 
legislature at its first session. 

In view of this general situation, the committee has 
thought it best, and in this we had the concurrence of the 
President of the Association, that the committee would not 
attempt to make a final report at this session of the Asso- 
ciation; but that instead, the report should be made to the 
1932 Annual meeting; that the report filed for that meet- 
ing should, after preliminary discussion, lie over for amend- 
ment or correction to the 1933 meeting, for final action ; and 
if then adopted, the matter would be placed before the 1934 
session of the Legislature. This plan would not only make 
the matter ready for the earliest legislative session at 
which there can be any reasonable hope that the proposal 
could receive thoughtful consideration in legislation, but 
would allow better opportunity to the Association, when 
normal times have been restored, to give upon the subject 
that more mature deliberation which its importance de- 

Respectfully submitted, 

V. A. Griffith, Chairman. 



University of Mississippi Law School and Mississippi State 
Bar Association 




Hon. George Butler, Chairman, Hugh N. Clayton, 

Jackson. Editor. 
Judge T. C. Kimbrough, 

University W. Calvin Wells, Jr., 

Hon. Hanun Gardner, ' ' 

Biloxi. Note Editor. 

Hon. Louis M. Jiggitts, 

Jackson. Cary Stovall, 

Hon. George J. Leftwich, Case Editor. 


H0N V^ksb KELLEY ' Leon l - Wheeless, 

Hon. Sid (Tmize, Business Manager. 


Willis McIlwain Claude F. Clayton 

William Inzer David Cottrell, Jr. 

J. O. Walton Carroll Kemp 

Warner Beard, Jr. J. Bennett Truly 

L. O. Smith, Jr. Thomas Ford Colbert 


The Journal aims to print matter of merit and interest and, although 
desirous of offering freedom of expression to contributors, assumes no re- 
sponsibility for the views expressed herein. 

ASSOCIATION, 1930-1931 

George Butler, Jackson 


Hanun Gardner, Gulfport 


Louis M. Jiggitts, Jackson 


George Butler, Jackson S. C. Mize, Gulfport 

Hanun Gardner, Gulfport R. M. Kelly, Vicksburg 

Louis M. Jiggitts, Jackson Geo. Leftwich, Aberdeen 

W. S. Welch J. H. Currie John L». Heiss 

T. W. Davis Forrest Cooper James McClure 

NOTE : The names and addresses of all other officers, committeemen, 
and members of the Mississippi State Bar Association are contained in the 
August, 1930, issue of the Journal. 




Liability of Insurer for Amount in Excess of Stipulated Liability in 
Policy by Reason of the Failure of Insurer to Settle the Claim. — The 
question to be discussed in this note is whether or not an insurance company- 
is under any duty to the insured under an indemnity policy to settle a case 
pending, or a judgment recovered against the insured if an offer within the 
indemnity limit is received, and whether or not the insurer is liable for failure 
to settle. 

The Mississippi Supreme Court has answered the above question in the 
negative by the case of Georgia Casualty Company vs. The Cotton Mills Products 
Company, 132 So. 73. That question was before that Honorable Court for the 
first time and the court was confronted by decisions from other courts that 
cannot be reconciled. In the Georgia Casualty Co. case, the injured party had 
recovered a judgment against the insured in the sum of $12,500.00, which 
judgment was appealed as excessive. The injured party offered to settle the 
judgment of $12,500.00 for $9,000.00 and costs of court. The insured strongly 
urged acceptance of this settlement and proposed to contribute $500.00 toward 
the payment of said compromise. The insurance company, being of the opinion 
that the judgment was excessive and that said judgment would be reduced by 
the Supreme Court, decided to await the court's action. It was agreed that 
the attorneys who conducted the suit were diligent and skillful and that the 
litigation was properly conducted. The whole contention of the insured was 
that notwithstanding the maximum liability had been paid by the insurer, still 
the reservation by the insurer of the right to settle and the exclusion of the 
insured from that right, creates more than an option to settle, and imposes 
upon the insurer the duty to settle as a reasonably prudent man would settle. 

By the terms of the contract the insurer contracts to indemnify the in- 
sured and to conduct his defense, reserving the right, but undertaking no duty 
to compromise. By the terms of the contract the insurer had the option to 
defend or settle the suit. 

In the above case the insurer chose to defend. 

There are two theories on which the action might be brought — in contract 
or upon tort. I shall attempt to discuss these two theories. 

non-liability on contract 
One of the strongest cases dealing with the contract theory of the case is, 
Wisconsin Zinc Company vs. Fidelity Etc. Co. of Maryland, 162 Wis. 39, 155 
N. W. 1081, in which Barnes, J., delivered the opinion of the court. He re- 
marked as follows: "There is no language in the policy that can fairly be 
construed to mean that defendant obligated himself to settle any and all 
claims that might be settled for $5,000.00 (the liability stipulated in policy) 
or less. No case is called to our attention where any such construction has 
been placed on similar contracts and we doubt if any can be found." And 
with regard to implied terms, his remarks are particularly pertinent: "The 


reservation of the right to settle is a mere option, which, however, cannot be 
used for fraudulent purposes. We can find nothing in the contract by which 
the defendant agreed to make any settlement, nor whereby it agreed to exercise 
ordinary care in the matter of negotiating settlements. It would be an arbi- 
trary assumption to say that the parties intended that their contract should 
contain such important provisions and still omitted any express mentioned 
of them." 

The terms of the contract are plain and unambiguous. The insurer simply 
agrees to undertake the defense of the action and only reserves the right to 
make a settlement. The party could not contradict, vary, add to or subtract 
from the terms of the contract. By the contract the insurer simply agrees to 
defend the action and it may or may not compromise the case, but in all of 
this it is not to be liable beyond a certain definite limit. The insured agrees 
for this definite indemnity to give up his right to defend or to settle the case. 

It was held in the case of Best Building Company vs. Employer's Liability 
Corporation, 247 N. Y. 451, 160 N. E. 911, that the contract of the parties must 
measure the liability of insurer in absence of fraud or bad faith ; that there was 
no implied obligation in the policy that the company must or would settle ac- 
cording to any offer made. The insurance company had the option to settle 
but was under no legal obligation, either express or implied, to compromise or 
settle the claims prior to trial. 

It was argued in the case of Rumford Falls Paper Company vs. Casualty 
Company, 92 Me. 574, 43 Atlantic 503, a case with fact similar to the Georgia 
Casualty case, supra, that by refusing to compromise within the limits of 
indemnity, the insurance Company assume the whole risk of further proceed- 
ing. This contention was rejected by the court which held that the policy 
of insurance was a contract of indemnity in which the parties had a legal right 
to insert any condition and stipulations which they deemed reasonable and 
necessary, providing no principle of public policy was contravened; that the 
contract should be construed according to the sense and meaning of the terms 
which the party used and the terms are to be taken and understood in their 
plain, ordinary and popular sense. 

Other cases maintaining the view that recovery cannot be had in an action 
on the contract, where the contention is that there is a duty on insurance com- 
pany to settle, are Schmidt Etc. vs. Travelers Insurance Company, 90 Atlantic 
653; New Orleans Etc. vs. Maryland Casualty Company, 114 La. 153, 38 So. 89; 
McAleenan vs. Mass. Bonding Company, 219 N. Y. 563; Levin vs. New England 
Casualty Company, 233 N. Y. 631, 135 N. E. 948; Auerbach vs. Maryland 
Casualty Co., 236 N. Y. 247, 140 N. E. 577, 28 A. L. B. 1294. 


The cases reviewed above acknowledge the liability for fraudulent conduct, 
or lack of good faith in refusing to settle but deny liability for negligent con- 
duct. There are cases which do not deny the responsibility for negligent con- 
duct. The cases maintaining both these views will be reviewed. 

The liability of the insurance company caused by fraud and bad faith in 
not settling is based on a fraudulent intent. Law gives a remedy for damages 
caused by fraudulent representations whether the representations are connected 
with contract or not. The fraudulent intent is the basis of action. It appears 


to the writer that there is ample grounds for imposing such liability on insurance 
companies where they in bad faith refuse a compromise. However, it does not 
appear that there is sufficient grounds for imposing liability on the insurers 
where they are guilty of negligent conduct. 

Negligence is not an affirmative cause of action. Negligence is simply 
one of the ways that a legal duty may be violated. While intent is necessary 
for an action of deceit based on fraudulent representation, negligence is the 
absence of intent. "The very term "negligence" negatives the possibility 
of intention in negligence cases. ' ' Bohlen studies in the Law of Tort, page 6. 
This difference in nature and principle between fraud and negligence makes 
clear to the writer 's mind the distinction the law draws between bad faith in 
refusing to settle and the bona fide exercise of a right to defend. There is no 
duty on the insurer to settle a case and therefore negligence could not be the 
basis of an action in tort. The only negligence on the part of the insurer that 
might be alleged is the failure to settle the suit within the limits of liability, 
and certainly no duty is imposed to settle. Where there is no bad faith shown 
but only a simple and honest mistake of judgment, there should be no recovery. 
It does not seem reasonable that a jury should decide when an insurance 
company has been negligent in refusing to settle. A great many times where 
there is clearly no liability an insurance company will settle the case rather 
than have a jury pass on the question of liability. This is a reasonable act on 
the part of the insurer. If the insurer is of the opinion that it has a chance 
with the jury and rather than pay a large sum in settlement of a case, which 
in the company's opinion is unreasonable, it decides to try the case, should 
the insurance company determine whether or not a reasonable person would 
settle? Should the insurer, in the exercise of its discretion, defend a case at 
its peril ? The insurer is given the option to settle or defend by the stipulations 
in the policy and surely in the exercise of that right the insurer could not be 
said to be acting negligently, regardless of whether it chooses to settle or 

The insurance policy imposes all the duties that the insurer agrees to assume. 
There is nothing in the contract that imposes a duty on the insurer to settle 
any case, although it has the right to so do. The insurer performs its contract 
when it defends the case and pays the judgment recovered against the insured. 

An obligation may be imposed by law upon the insurance company since 
it undertakes to serve the insured. Such an obligation was imposed in the 
case of Douglas vs. U. S. Fidelity Sf Guaranty Company, 81 N. H. 371, 127 
Atl. 708, 37 A. L. R. 1477. That case was a tort action brought by Douglas 
against the Insurance Company for negligently failing to settle a claim for 
damages against insured. The court distinguished all the cases brought on the 
contract upon the theory that the duty to settle was absolute and maintained 
that in all dealings in the defense of claim, the insurer was bound to act as a 
reasonable man might act under the same circumstances. The court also 
criticized the holding in the Wisconsin Zinc Co. case, supra, which case held 
that the right to settle is a mere option, and that the insurer did not contract 
to use ordinary care in the matter of settlement. Quoting from the Zinc 
Company case, "It would be an arbitrary assumption to say that the parties 
intended that their contract should contain such important provisions and still 
omitted any express mentioned of them. ' ' The court in the Douglas case in 
criticizing the above theory, said: "So far as an obligation to use care is 


concerned, the above reasoning has no weight. That obligation is ordinarly 
imposed by law upon all who undertake a service. Burnham vs. Sailings, 76 
N. H. 122, 79 Atl. 987 and cases cited. It is not usual to express this duty 
in the contract." 

The Douglas case cites and re-affirms Cavanaugh vs. General Accident Fire 
4r Life Assurance Corporation, 79 N. H. 186, 106 Atl. 604. That case held, 
(quoting from syllabus) that, "one who insures another against liability for 
accident owes the insured the duty of settling with an injured person before 
suit, if that is the reasonable thing to do, and is liable to the insured for 
negligent failure to do so after assuming control of the claim." Such a 
decision is unreasonable in that it denies the insurance company the right to 
contest the case or if it does contest the cause, it does so at its peril. After 
a judgment has been rendered in excess of the stipulated liability, that de- 
cision would permit a jury to determine whether or not the insurance company 
was negligent in failing to settle. It would deprive the insurer of its right 
to settle or defend the case, a right stipulated in the contract of insurance. 
In the case of Stowers Furniture Company vs. American Indemnity Co., 
15 S. W. (2d) 544, The Commissions of Appeals of Texas reversed the court 
of Civil Appeals stating that the better and sounder authorities and those in 
harmony with the spirit of the Laws of Texas support a contrary rule. The 
Commissions cites the Douglas case for approval and held that it would be a 
harsh rule if the Indemnity Company owed no duty whatever to the insured 
except that stated in the policy. 

The case of Mendota Electric Company vs. N. Y. Indemnity Co., 169 Minn. 
377, 211 N. W. 317, holds that, "good faith and fair dealings are correlative 
obligations and the insurer owes to the insured some duties in the matter of 
the settlement of claims covered by the policy." 

The case of Wynnewood Lbr: Co. vs. Travelers Insurance Company, 173 
N. C. 269, 91 S. E. 946, holds that the insurer is not liable for not compromising 
the claim in the absence of any suggestion that insurer was negligent in the 
proper prosecution of the suit, or had acted in bad faith. Quoting from the 
opinion as follows: "That provision (right to settle or defend) was evidently 
placed in the contract for the protection of the insurer, and gives the insurer 
the right to exercise its own judgment as to when a compromise and a settle- 
ment shall be made. Of course, it must be exercised in good faith and with- 
out any wrongful or fraudulent purpose. When properly exercised, it is bind- 
ing upon the insured. It turns out that it would have been better for all 
parties, the plaintiff as well as the defendant, if the offer of compromise 
had been accepted, but, as is said in the brief of counsel for the defendant, 
"this is a case where hindsight turns out to be better than foresight." It 
was a mistake of judgment, something not unusual in the affairs of this 
life. Such a mistake, honestly made, does not subject the person to legal 
liability. ' ' 

Another strong case holding that the insurer was under no duty to settle 
is, Kingman vs. Maryland Casualty Co., 115 N. E. 348. The court said, "It 
was appellants duty to elect to defend or to settle or to pay. It was not its 
duty to settle to the exclusion of the other alternatives. So the court held 
under similar policies, (citations follows). The institution of the suit created 
no other duty than to elect. By electing to defend, and by defending, appellee 
discharges full duty toward appellant arising at that stage of the proceedings. 


As there was no duty to settle, the argument must fail. Liability against 
appellee cannot, in the absence of fraud, be predicated on the fact that it 
elected to defend, rather than to settle." 

The case of Davidson vs. Maryland Casualty Co., 197 Mass. 167, 83 N. E. 
407, states clearly the proposition that the insurer does not have to regard the 
interest of the insured to the prejudice of his own where there is a conflict 
between them as to carrying the case to a higher court on exceptions. The 
contract was fully performed when the case was defended. 


As before stated the decisions of the courts are in conflict on this question. 
However, it is the opinion of the writer that the decision of the Supreme Court 
of Mississippi in the case of Georgia Casualty Co. vs. Cotton Mills Products Co. 
is supported by the better reasoning and weight of authority. The question 
as to the right of action upon the contract on the theory that the duty to 
compromise is absolute has been settled. There is no absolute duty to settle 
but an option, and when an election to defend or compromise has been de- 
termined, the contract is fully performed. 

The better reasoned decisions, in the opinion of the writer, seem to support 
the view that no action for negligence can be predicated upon the insurers 
failure to settle a case. The insurer should not be liable for damages if he 
exercise his option and having made an election, performs a duty stipulated 
in the policy of insurance. 




Appeal and Error: Trial: Argument of Counsel; Latitude op. — The 
Journal is reviewing this case from a point of novel interest and as one ex- 
tending the privileges of advocacy in the argument of the cause. The opinion 
written by Mr. Justice Etheridge in this case rightly deserves a place in the 
Classics of the Bench and Bar, if only for its rare literary value. The Journal 
is pleased to quote frequently from the opinion. 

From the record it appears that the defendants in the court below, now 
appellants, had a contrivance in their place of business which held wrapping 
paper and which was fastened to a wrapping counter by means of screws and 
nails. At the wrapping counter the defendants had a wrapping clerk whose 
duty it was to wrap packages sold by the clerks in the store. The plaintiff, 
a saleswoman, was stooping near the wrapping counter when the wrapping 
clerk undertook to tear from the contrivance paper with which to wrap a package 
sold by the plaintiff. The roll of paper weighing some thirty-six pounds 
toppled and fell against the plaintiff, striking her head. 

The plaintiff's evidence tended to show that the injury thus inflicted re- 
sulted in probably a permanent nerve injury. The defendants offered testimony 
to show that the plaintiff was before the injury inflicted with a horrible 
disease. From all of the conflicting and the maze of testimony, it was for the 
jury to determine whether or not the plaintiff's injury existed and to what 
extent it did exist. The jury found for the plaintiff.i The defendants ap- 
pealed, assigning among other things, the arguments made by the attorneys 
for the plaintiff. (A special bill of exceptions thereto was not filed until 
after the trial had ended, but during the term.) It appears that one of the 
counsel for the plaintiff, in opening the argument, stated : ' ' Not only have 
there been throughout the trial insinuations that the plaintiff was faking and 
trying to get money, but there have been insinuations against the character of 
the plaintiff throughout the whole trial." Whereupon the counsel for the 
defendants objected. The counsel for the plaintiff said in closing the argu- 
ments, "It is the rule of the sea in case of a sinking vessel, that women and 
children shall be first, but this defendant has . . . reflected upon the character 
of this wife and mother ..." Whereupon objection was made and the court 

said: "Stay within the record, Mr. . " At the close of the argument the 

counsel for the defendant asked that the jury be instructed to disregard the 
last argument of counsel for the plaintiff. The court instructed the jury to 
so disregard the argument. 

Upon this ruling of the trial judge and upon the several objections made 
to plaintiff's counsel's argument the Mississippi Supreme Court held, in af- 
firming the judgment of the trial court, in Nelms 8f Blum Company vs. Fink 
(Miss.) 131 So. 817, speaking through Etheridge, P. J., "It is always a difficult 
matter, as well as a delicate one, to determine whether there has been an abuse 
of the privilege of advocacy in the argument of the cause. . . . The trial judge 

l The Supreme Court held this to be negligence for which defendants were 


has a peculiar and distinct advantage of the judges of this court in judging 
upon such questions, because he is not only familiar with the evidence and the 
atmosphere of the case, as it may be called, but he has heard the entire argu- 
ment and knows the setting that the language complained of has in connection 
with the argument on both sides of a case. ..." 

"Counsel necessarily has, and must have to serve his function and office, 
a wide field of discretion. He may comment upon any fact introduced in 
evidence." Unless it is palpably evident that there has been prejudice harm- 
ful to the cause injected or misstatement of the facts by counsel, the Supreme 
Court will not reverse. The court will not undertake to control the counsel 's 
argument so long as he does not become abusive, or go outside the record as 
to fact or inject harmful prejudices. 2 To quote further from Mr. Justice 
Etheridge, ' ' Counsel is not required to be logical in argument ; he is not 
required to draw sound conclusions, or to have a perfect argument measured 
by logical and rhetorical rules; his function is to draw conclusions and in- 
ferences from evidence on behalf of his clients in whatever way he deems 
proper, so long as he does not become abusive and go outside the confines of the 
record. Usually when the argument is considered as a whole it is found con- 
sistent and logical and frequently eloquent. Some of the greatest speeches in 
our history have been made within a courthouse. As has been said, the court 
cannot control the substance and phraseology of counsel's argument; there 
is nothing to authorize the court to interfere until there is either abuse, un- 
justified denunciation, or a statement of fact not shown in evidence. 

" Counsel may draw upon literature, history, science, religion, and philos- 
ophy for material for his argument. He may navigate all rivers of modern 
literature or sail the seas of ancient learning; he may explore all the shores 
of thought and experience; he may, if he will, take the wings of the morning 
and fly not only to the uttermost parts of the sea but to the uttermost limits 
of space in search of illustrations, similes, and metaphors to adorn his argu- 

' ' He may reach the uttermost heights of attainable eloquence, soar into 
the empyrean heights where his shadow may fall on the loftiest mountain top, 
as the eagle in its loftiest flight. He may borrow from every source, modern 
and ancient, such materials as he needs for his argument. He may clothe 
the common occurrences of life in the habiliments of poetry and give to airy 
nothings a habitation and a name. He may weave of words a rhetorical bouquet 
that enchants the ear and mesmerizes the mind. He may make the learning 
of the ages the servant of his tongue. His argument may be profound as logic 
and learning can make them. He may give wing to his wit and play to his 
imagination so long as he does not imagine fact not in evidence, which the 
court does not take judicial knowledge of, or does not go out of the record 
for the facts not in evidence. As to the facts in evidence, he may array them 
in such figures and forms and clothe them with such ideas and conclusions as 
be can conjure up in his mind for the best interest of his cause. He cannot, 
however, state facts which are not in evidence, and which the court does not 
judicially know, in aid of his evidence. Neither can he appeal to the prejudices 
of men by injecting prejudices not contained in some source of the evidence. ' ' 


2 See also Gray vs. The State, 90 Miss. 235 (Cited). 


Pardon — Full Pardon Absolves an Attorney At Law From all the 
Consequences of an Order of Disbarment Made Under Section 3695 Code 
of 1930 as a Part of the Punishment for the Commission of a Crime. — 
In December 1928 Charles W. Crisler was convicted in the Circuit Court of 
Hinds County of the crime of embezzlement and sentenced to a term in the 
penitentiary. He was then a duly licensed and practicing attorney at law, and 
the judgment included an order forever disbarring him from the practice of 
law in the State of Mississippi. After serving a portion of his term in the 
penitentiary, he was granted a full pardon by the Governor. Some time after 
receiving this pardon he filed a petition in the Circuit Court of Hinds County, 
setting up his conviction and pardon, and praying that the order disbarring 
him from the practice of law be annulled. The court declined to grant the 
prayer of the petition and dismissed it. On appeal the judgment was reversed 
and a judgment in accordance with the prayer of the petition was rendered. 
The reversal was based on the ground that the disbarment was made in ac- 
cordance with Section 3695 of the Code of 1930 which provided, "Every 
person who has been or shall hereafter be convicted of felony, manslaughter 
excepted, shall be incapable of obtaining a license to practice law; or, if 
already licensed, the court in which he shall have been convicted shall enter 
an order disbarring such convict, ' ' and was therefore, a part of the punishment 
imposed for the commission of the crime of which Crisler was convicted. (Ex 
Parte Crisler— 132 So. 103.) 

While there is much conflict among the decisions passing upon the effect 
of a pardon on the right to disbar an attorney for criminal misconduct, the 
lack of harmony is probably more apparent than real, and arises from the 
differences in the nature of the charges on which the proceedings to disbar 
are based. Had the proceedings been under Section 3703, Code of 1930, which 
provided, "If any attorney or counselor at law be in default or record, or 
otherwise guilty of any deceit, malpractice or misbehavior, or shall willfully 
violate his duties, he shall be stricken from the roll and disbarred, and his 
license revoked by any court in which he may practice; and such persons shall 
never afterward be permitted to act as an attorney or counselor in any court 
in this state," a different result in Ex Parte Crisler might have been reached. 

The effect of a pardon is, "A full pardon absolves the party from all 
legal consequences of his crime and his conviction, direct and collateral, in- 
cluding the punishment, whether of imprisonment, pecuniary penalty, or what- 
ever else the law has provided." (Bishop's Criminal Law, Section 916, eighth 

This statement of the effect of a pardon is in accordance with the au- 
thorities. In Jones vs. Board of Registrars (56 Miss. 766, 31 Am. Report 585), 
a convict who had been pardoned was denied the right to register as a voter, 
and in reversing the judgment of the lower court, the Mississippi Supreme Court 
in a decision rendered by Judge Campbell, said that, ' ' The doctrine of the 
authorities is that 'a pardon reaches both the punishment prescribed for the 
offence, and the guilt of the offender, ' and that ' it releases the punishment 
and blots out of existence the guilt, so that in the eye of the law, the offender 
iB as innocent as if he had never committed the offence. If granted after 
conviction, it removes the penalties and disabilities, and restores him (the 
convict) to all his civil rights; it makes him, as it were a new man, and gives 
him a new credit and capacity.' Ex Parte Garland, (4 Wall 333; 18 U. S. 


L. ed. 366). A pardon by the Governor is an act of soverign grace, proceed- 
ing from the same source which makes conviction of crime a ground of ex- 
clusion from suffrage. The act of absolution is of as high derivation and 
character as the act of prescription. The pardon must be held to rehabili&te 
the person in all his rights as a citizen, and to deny to any officer of the 
State the right to impute to him the fact of his conviction after the pardon, 
he is as if he was never convicted. It shall never be said of him that he 
was convicted. The pardon obliterates the fact of conviction, and makes it 
as if it never was." 

In the light of this decision, the citation of other authorities is unneces- 
sary, but it may not be amiss to state that the rule there applied to the effect 
of a pardon on the right of suffrage forfeited because of the commission of 
the crime for which the pardon was granted has been applied by other courts 
to the effect of a pardon on the disbarment of an attorney at law as part of 
the punishment for the commission of the crime for which the pardon was 
granted. Ex Parte Garland, (4 Wall 333, 18 L. ed. 366) Scott vs. State, (6 Tex. 
Civ. App. 343, 25 S. W. 337) ; In Be Emmons, (29 Cal. App. 121). 


Constitutional Law. Due Process Requires Notice and Hearing Be- 
fore Court Can Deprive Parent of Child's Custody. — H. B. Sinquefield 
filed a petition in County Court for the custody of his two children, aged four 
and five years, alleging that their grandparents, Mr. and Mrs. W. P. Valentine, 
were unlawfully retaining control over them, continuing to refuse to deliver 
them to appellant in spite of his repeated demand on the Valentines so to do. 
On hearing it appeared that some six months before the presentation of the 
above mentioned petition, Valentine presented a petition to the chancellor 
of the district in vacation in which it was alleged that said Sinquefield was 
an unsuitable person to have custody and control over his children. The 
chancellor granted the relief prayed for without any notice having been 
given to appellant of the petition or without his being heard as to his ability 
to care for the child. The statute providing for the appointment of a 
guardian to take charge of a child in preference to the child's father, states 
that the parent must be ' ' unsuitable to discharge the duties of guardianship ' ' ; 
but nothing is said concerning notice or service of summons to the opposing 
party in the proceeding. (Code 1930, Sec. 1863.) HELD: Due process 
demanded that notice and hearing be had before a valid decree depriving 
the parent of his child could be rendered; and the decree having been ren- 
dered without notice and hearing, it could not be used in bar subsequently to 
a petition by Sinquefield for the custody of his children. (Sinquefield vs. 
Valentine et al., 132 So. 81.) 

In the case at hand, the court announces three constitutional principles 
on which it based its decision, which are in substance as follows: 

1. "Due process" in the constitutional sense demands notice and hear- 

2. The guaranties of "liberty", found in the 14th Amendment to the 
Constitution of the United States, comprehend the privilege of a parent to have 
the custody and control over his own child, the creation of his life 's blood, 


his natural ward, aa long as from a social aspect that parent is considered a 
person suitable to be a guardian for his child. 

3. This being true, it is unconstitutional for any court to deprive a 
parent of his child without having served notice on him or her of the pro- 
ceeding and affording an opportunity to be heard. 

Wjith regard to the Fourteenth Amendment to the Federal Constitution, 
the Court considered the case of Meyer vs. Nebraska, 262 U. S. 390, in which 
the court held that ' ' the liberty guaranteed by the Fourteenth Amendment 
denotes not merely freedom from bodily restraint, but also the right of the 
individual to contract, engage in any of the common occupations of life, and 
to acquire useful knowledge, to establish a home, to bring up his children, to 
worship God according to the dictates of his conscience, and to enjoy those 
privileges long recognized at common law as essential to man's happiness." 

What is meant by "due process" has been a mooted question from the 
beginning. No authority has ever so much as attempted to formulate any 
straight-lace rule as to what constitutes "due process" as applied in all in- 
stances. Undoubtedly such would be impossible as well as impractical and 
dangerous. But however indefinite the clause of the constitution may appear, 
it positively demands that courts cannot proceed without notice and hearing. 
Truly notice and hearing lie at the very foundation of our present judicial 
system, having been born in common law simultaneously with the idea of 
furthering justice and equity through court decisions. Fairness and impar- 
tiality, opinions devoid of prejudice, are indispensible to our tribunals as 
established. To further these principles and promote the general welfare, it 
is made imperative by the spirit of our Federal Constitution that courts hear 
both sides of every controversy where life, liberty, or property are at stake. 


Statute of Frauds — Writings Connected by Internal Reference; 
Guaranty — Distinguished From Indemnity; Banks and Banking — Lia- 
bility of Directors for Debts of Bank. — Suit in equity by the liquidators, 
against the directors, of the Crystal Springs Bank on a contract between the 
directors and the bank. The directors were bound by the contract to make 
good paper losses of the bank up to $273,000.00, on or after November 1, 
1927. The bank agreed to carry this paper until that date, and then to assign 
that part of it on which the losses appeared to the directors, in consideration 
that the latter pay the losses. The paper was listed on a separate sheet, not 
signed by the directors, and referred to in the contract as ' ' Schedule No. 1. ' ' 
The State Banking Department, approving the contract, refrained from assess- 
ing the stockholders to make good the losses. The bill was demurred to, which 
was sustained below. Reversed. Love, Superintendent of Banks, et al. vs. 
Dampeer et al., (Miss.) 132 So. 439. 

HELD : The contract was one of guaranty, not of indemnity. The paper 
on which the losses occurred was to be transferred to the directors if it became 
necessary for them to make good the losses. The bank was, therefore, under no 
duty to exhaust the remedies against the makers of the debts. 

The consideration was adequate: the defendants were stockholders, offi- 
cers, and directors of the bank; the banking department was about to call for 


additional security, and was threatening to assess the stockholders; the bank 
might have been closed, and the directors sued for negligent management of 
the bank. 

The contract was not a violation of the statute of frauds because of the 
fact that Schedule No. 1 was not signed by the defendants. The reference 
to it in the contract was sufficient to authorize the admission of parole proof 
as to its authenticity. Wilkinson vs. Taylor Mfg. Co., 67 Miss. 231; Waul vs. 
Kirkman, 27 Miss. 823; Fisher vs. Kuhn, 54 Miss. 480; Gulf port Cotton Oil, 
Fertilizer and Mfg. Co. vs. Reneau, 94 Miss. 904; Willis vs. Ellis, 98 Miss. 197. 

The contract was not in violation of the public policy of the state: the 
debts deemed bad by the banking department were guaranteed by solvent 

The banking department could assert the rights of the bank under the 

Finally, the case was peculiarly within the jurisdiction of chancery be- 
cause it would require some training in accountancy to determine exactly the 
situation of the parties. 


Railroads — Mississippi Prima Facie Statute — In Action for Death, 
Instruction Permitting Inference of Negligence From Railroad Crossing 
Accident, Erroneous. — Plaintiffs intestate drove his automobile at a grade 
crossing, in front of a fast approaching train of the defendant and was killed 
instantly. The driver was alone in the car, but other witnesses saw the accident. 
The testimony as to whether or not the train was exceeding the statutory speed 
limit and whether or not the statutory signals were given was conflicting. But 
it was shown that if the driver had stopped, looked, and listened he would 
have seen the approaching train. The testimony for the plaintiffs was that 
no signals were given and for the defendant that all were given. Under these 
circumstances, at the request of the plaintiffs, the court charged the jury that, 
if there was such a conflict of fact in the testimony as to prevent them from 
being able to determine how the injury was inflicted, then they might infer 
negligence on the part of the defendant and render a verdict for the plaintiffs. 
HELD: That such instruction was unreasonable, arbitrary, and violative of 
the due process clause of the Fourteenth Amendment. Wickton et al. vs. Louis- 
ville 4- N. R. Co., 45 Fed. 615. 

It is interesting to note that the above instruction is proper in the exact 
words used above in the latest decisions of the Supreme Court of Mississippi. 
Columbus 4r G. -%• Co. vs. Lee, 149 Miss. 543 ; Columbus 4" G. Ry. Co. vs. Fon- 
dren, 154 Miss. 40, 121 So. 838. 

Judge Holmes, Federal Judge for the Southern District of Mississippi, 
rendered the above decision and in discussing the above instruction said that 
the Mississippi Prima Facie Statute as now construed by our Supreme Court 
puts the burden upon the defendant to show how the accident occurred in the 
case of a collision between a locomotive and an automobile. If there is a con- 
flict in the testimony and the jury are unable to say what the truth is or 
how the accident happened, the presumption requires the verdict to be for the 
plaintiff. If the evidence is evenly balanced it tips the scales in favor of the 
plaintiff. The statute does not create merely a "temporary inference of fact," 


that vanishes upon the introduction of some evidence to the contrary, but it 
creates a presumption ' ' that is given the effect of evidence to be weighed 
against the opposing testimony." 

This construction of the effect of the statute by the Mississippi Supreme 
Court brings it within the decision of the United States Supreme Court in the 
case of Western $ Atlantic Railroad vs. Henderson et al., 279 U. S. 639, where 
the Georgia prima facie statute was declared unreasonable, arbitrary, and vio- 
lative of the due process clause of the Fourteenth Amendment. 

While the above decision is only the decision of the District Court and 
not yet finally adjudicated, it is nevertheless interesting to the members of the 
Bar in Mississippi. This is true because it demonstrates the uncertainty and 
danger involved in relying on the statute, especially in the Federal Courts. 
It seems likely that when a case involving the statute as now construed is 
properly presented to the Supreme Court of the United States that it will be 
declared unconstitutional. 

It is also interesting to note that the above decision bears out the pre- 
diction made by Judge Venable in his article published in the May issue of 
the Law Journal last year. In that interesting and exhaustive article Judge 
Venable called attention to the danger and uncertainty in relying upon the 
statute and also predicted that the statute as now construed would likely be 
declared unconstitutional. 




Essays in Jurisprudence and the Com ion Law. By Arthur L. 
Goodhart, Cambridge: The UniverL..y Press; New York: The 
Macmillan Company, 1931. pp. xiii, 295. 

The book to be reviewed, ' ' Essays in Jurisprudence and The Common 
Law, ' ' by Arthur L. Goodhart, is, with the exception of one essay, a series of 
essays which have appeared in the course of the last four years in legal 
periodicals throughout the country. Before going any further, I shall give 
you a little data about the person who has written these delightful essays. 

Arthur L. Goodhart is a native of New York City. He was graduated at 
Yale, and for ten years has been a fellow of Corpus Christi College, Cam- 
bridge, and since 1926 has been editor of the Law Quarterly Review. Upon 
the publication of ' ' Essays in Jurisprudence and the Common Law, ' ' Mr. 
Goodhart has been created Doctor of Law at Cambridge, and appointed to 
the Corpus Professorship of Jurisprudence at Oxford, the first American ever 
to receive this honor. Incidentally I might mention that he was assistant 
corporation counsel under the Mitchell administration in New York. Having 
briefly introduced Mr. Goodhart, we shall now proceed to examine his book. 

It consists of thirteen essays. The author in his preface says : ' ' The 
first seven chapters have been entitled ' Essays in Jurisprudence,' for they 
are concerned with questions which are, as a rule, examined in the leading 
textbooks on this ill defined subject. The last six chapters are of a more 
technical nature; they may, perhaps, be described as dealing with the common 
law if we use that term in a broad sense as including statute law." 

The first essay, " Determining the Ratio Decidendi of a Case," is, I 
would say, one of the best essays in the book. It was originally delivered 
as a lecture before the University of London, and is here reprinted from the 
Yale Law Journal. Ratio decidendi means the reasoning process the court 
went through in deciding the case. The author first discusses what the text 
writers and Judges say on the subject, and he then goes into detail about his 
opinion of the matter. He says: "To determine the principle of a case the 
first and most essential step is, therefore, to determine what were the material 
facts on which the judge has based his conclusion. But are there any rules 
which will help us in isolating these material facts? It is obvious that none 
can be found which will invariably give us the desired result, for if this were 
possible then the interpretation of cases, which is one of the most difficult 
of the arts, would be comparatively easy." He then points out, in a thorough 
and understandable manner, the way in which the student should go about 
deducing the principle from the case. He quotes numerous cases and authors 
on the subjects discussed, and at the end of his essay he lays down fifteen 
rules for finding the principles that grow out of cases. It is a most enjoyable 
as well as a most instructive essay, and well worth the time spent in reading it. 

In his second essay, "Recent Tendencies in English Jurisprudence," he 
suggests the many faults in the present day law of England. He suggests, 
also, the many questions that are arising every day, and leaves the solution 


of them to your own imagination. Under this head he discusses questions 
arising under International Law, Constitutional Law, Law of Torts, Contracts, 
Company Law or as we call it Corporation Law, Property, Domestic Relation, 
and Criminal Law. 

In the third essay, ' ' Case Law in England and America, ' ' he discusses 
the marked divergence between the English and American attitude of the most 
characteristic doctrine of the common law — the doctrine of stare decisis. He 
gives the present day and some of the older opinions on the subject. In this 
essay the author attempts to show that we are drifting towards the civil law. 
He gives five good reasons for his assertion. 

The remainder of the essays are excellent reading. They are all on in- 
teresting subjects. As a matter of fact after reading Mr. Goodhart's essay 
one wonders why the other law writers do not adopt this clear and interesting 
style in handling law subjects; for after all, law is one of the most interesting 
of all studies, and there is no reason why a dry matter of fact style should be 
adopted to explain it. So -deftly does Mr. Goodhart handle his subjects that 
one would think that he is reading one of Ruskin 's essays. Maybe it is Mr. 
Goodhart's association with our English friends that is the cause of it, but 
whatever it is, it is well worth while. (An evening spent reading this delight- 
ful little book will be an evening spent with a most scholarly and a most cul- 
tured gentleman; as well as highly entertaining and instructive.) 


How to Find the Law. By Fred A. Eldean, St. Paul, Minnesota: 
The West Publishing Co., 1931. pp. xxiii, 782. 

The first chapters in the text are devoted to giving a general outline of 
the legal reference materials. The necessary details are given later in connec- 
tion with the specific situations in which they become important. It is be- 
lieved that the student will grasp and retain the fundamentals if not over- 
whelmed at the outset with all the hedging exceptions or detail. 

In Chapters 2, 3, and 4, the materials have been developed through a 
description of how they came into being. Recognition is given in Chapter 2 
to the legislative process which is receiving increasing attention on the part 
of a number of instructors in legal bibliography. 

Chapters 5 to 8 discuss the fundamental situation of the lawyer having 
before him a set of facts requiring a solution. Chapters 5 to 6 describe the 
processes in connection with legislative materials. The Federal materials are 
placed first. Each state presents individual problems in the arrangement of 
the statutory collections. It is easier to present these after the student has 
grasped certain fundamentals in connection with his study of search in the 
Federal materials. For similar practical reasons the search involving the use 
of digests is given in the chapter preceding that dealing with encyclopoedias. 

The other chief fundamental search situation is that in which the legal 
inquirer has found a pertinent precedent and now seeks to supplement or 
evaluate it. This is discussed in Chapter 9. 

Chapter 10 presents an outline of synthesis of methods, which is of great 
assistance to the student in learning to organize his legal search operations 
and make them more efficient. 


Chapter 11 represents an entirely new departure in books of this type. 
It is entitled "Business Data for the Lawyer" and has been prepared by 
Dr. Nathan Isaacs, Professor of Business Law in the Harvard Graduate School 
of Business Administration, assisted by Mr. George F. Doriot, Professor of 
Industrial Management in the Harvard School of Business Administration. 
There is a growing acknowledgment by the courts in the importance of this 
business material, and the lawyer is constantly concerned with it. The move- 
ment in this direction is being recognized by many law schools today in 
reorganizing their courses. 

After the searcher has located the pertinent material for which he has 
been seeking, he is in a position where he must analyze with a view to evaluat- 
ing what he has found. While this may bring into play his entire background 
of knowledge yet it may also require an understanding of what weight to at- 
tach to a decision or a statute upon grounds resting wholly upon construction. 
Certain rules have developed for the interpretation of decisions and statutes. 
These are discussed in Chapters 12 to 18 by Mr. Eugene Wimbaugh, Professor 
of Law, Emeritus, Harvard Law School. 

With the materials located and evaluated, the inquirer may find that he 
will want to organize them along with other data into his trial brief. Chapter 
18, the Trial Brief, is by Mr. Edson R. Sunderland, Professor of Law, Uni- 
versity of Michigan, an'd Mr. Clifford W. Crandall, Professor of Law, Uni- 
versity of Florida. 

It is not practicable to set forth within the limits of this text a complete 
bibliography of American Legal Reference Materials. However, Chapter 20 
does present a bibliography of some of the outstanding materials. After 
giving the Federal and General materials, the states are listed in alphabetical 
order with a brief outline of the statutes, reports, designation of the courts 
of last resort, digests, citation books, and local practice books. Instead of 
grouping the materials according to type as has been the custom, the arrange- 
ment has been made wholly upon the basis of states, it being believed that the 
inquirer usually goes to a bibliography for material with reference to a certain 

English materials have been treated in a separate section of the book. 
Chapter 21 is a text discussion and Chapter 22 is a bibliography of the English 
materials. It has been suggested by several instructors that such an arrange- 
ment would eliminate much of the confusion which ensues when one presents 
the English works in the same chapters with the American. 

In order that the student may get practical library experience, problems 
have been arranged to accompany each chapter. Fifty different problems 
have been arranged for each job set forth in the chapters, so that each member 
will have his own individual law library practice. These problems have been 
bound in a pamphlet to accompany the book, known as the "Student's Note 
Book. ' ' Because these separate problems have been prepared, the number of 
text illustrations have been cut down to a minimum. 

The author, by the use of his informal style, has succeeded in making 
the subject of Legal Bibliography an interesting one to those who are so 
fortunate as to study this volume. In the opinion of the reviewer it is the 
best in its field. 




Cases on Insurance. By William R. Vance. St. Paul, Minnesota: 
The West Publishing Company, 1931, pp. xiv, 974. 

Essays in Jurisprudence and the Common Law. Arthur L. Good- 
hart, Cambridge: The University Press; New York: The 
Macmillan Company, 1931, pp. xiii, 295. 














Committees viii 

Constitution and By-Laws 71 

County Vice-Presidents x 

Former Presidents xiii 

Hopes of the New Administration 1 

Officers vii 

Open Letter of Secretary vi 

Pre-Convention Committee Reports 319 

Proceedings of the Twenty-fifth Annual Convention, held at Gulf port.... 4 

Roll of Members 66 


A New Legal Classification in Mississippi Jurisprudence, 

Wm. H. WatUns 171 

Guaranty of Bank Deposits in Eight States, A. B. Butts 186 

Liabilities of Municipal Corporations in Mississippi, Kenneth P. Vinsel.... 298 

Section 147 of the Constitution of 1890, D. M. Russell 292 

Some Aspects of the Commerce Clause, R. V. Fletcher 136 

Statute of Frauds: Who is the Party to be Charged? 

F. J. Lotterhos 120 

The Court System of Mississippi, A. B. Butts 97 

The High-Lights of the Great Sanhedrin, Gabe Jacobson 261 

The Law of Arrests, Geo. H. Ethridge 79 

The Life of Judge J. A. P. Campbell, W. J. Pack 209 

The Rising Tide of Advocates, Will Shafroth 203 

The Sprague Case, H. PL. CreeJcmore 282 

Tort Liability of Insurance Companies, R. C. Stovall 178 


Butts, A. B. — Guaranty of Bank Deposits in Eight States 186 

Butts, A. B. — The Court System of Mississippi 97 

Creekmore, H. H. — The Sprague Case 282 

Ethridge, Geo. H. — The Law of Arrests 79 

Fletcher, R. V. — Some Aspects of the Commerce Clause 136 

Jacobson, Gabe — The High-Lights of the Great Sanhedrin 261 

Lotterhos, F. J. — The Statute of Frauds : Who is the 

Party to be Charged? 126 

Pack, W. J.— The Life of Judge J. A. P. Campbell 209 

Russell, D. M— Section 147 of the Constitution of 1890 292 

Shafroth, Will — The Rising Tide of Advocates 203 

Stovall, R. C. — Tort Liability of Insurance Companies 178 

Vinsel, Kenneth P. — Liabilities of Municipal Corporations 

in Mississippi 298 

W atkins, Wm. H. — A New Legal Classification in 

Mississippi Jurisprudence 171 




Adoption — Relation It Creates — Effect on Property Rights in Mississippi 238 

Corporate Control Through Holding Companies 151 

Exemption of Lawyers from Service of Civil Process while attending 

Court in a Foreign Jurisdiction 241 

Liability of Insurer for Amount in Excess of Stipulated Liability in 

Policy by Reason of Failure of Insurer to Settle Claim 334 

Mortgages — How Lands Sold under Mortgages and Deeds of Trust 244 

The Sign Statute 155 

Total and Permanent Disability under Insurance Contracts 236 


Essays in Jurisprudence and the Common Law, Arthur L. Goodhart 346 

How to Find the Law, Fred Al Eldean 347 

May It Please the Court, James M. Beck 166 

Questioned Documents, Albert S. Osborn 258 

Vance on Insurance, William R. Vance 256 

Wit, Wisdom, and Eloquence, R. L. Gray 255 


Blackshire v. State 251 

Capitol Stages, Inc., et al. v. State ex rel, Hewitt, District Attorney 165 

Coca-Cola Works v. Simpson 248 

Crawford v. Crawford 252 

Dotson v. State 164 

Ex Parte Crisler 341 

Hughes v. Gregory Bus Lines 159 

Love, Superintendent of Banks v. Dampeer, et al 343 

Myers v. State 247 

Nelms Sf Blum Co. v. Fink 339 

Robertson v. N. O. $ G. N. R. Co 160 

Sanford v. Dixie Construction Co 161 

Sinquefield v. Valentine et al 342 

State ex rel Baria v. Alexander 250 

Vehicle Woodstock Co. v. Bowles 163 

Wickton v. L. $ N. R. Co 344 

Y. 4- M. V. R. Co. v. Beasley et al 250 


The University of Mississippi Law School 150